Downing Inv. Co. v. Coolidge

• Decision Date: 04 October 1909
• Parties: DOWNING INVESTMENT CO. v. COOLIDGE.
• Court: Colorado Supreme Court

104 P. 392

46 Colo. 345

DOWNING INVESTMENT CO. v. COOLIDGE.

Supreme Court of Colorado

October 4, 1909

Appeal from District Court, City and County of Denver; Carlton M Bliss, Judge.

Action by the Downing Investment Company against Cassius M Coolidge. From a judgment for defendant, plaintiff appeals. Affirmed.

Warwick M. Downing, for appellant.

G. M Allen, for appellee.

HILL J.

Action for the specific performance of an alleged contract for the sale of real estate. From a judgment by motion upon the pleadings in favor of the appellee (defendant below) the appellant appeals.

The appellee, a resident of New York City, was the owner of certain lots in the city of Denver. All negotiations with him concerning their sale were by correspondence between him and M. Hewitt, a real estate agent in Denver, upon the strength of which he, as the pretended agent of the appellee, entered or attempted to enter into a contract with Warwick M. Downing for the sale of the lots. The contract was in writing as follows: 'June 5, 1903. Received of Warwick M. Downing, undersigned purchaser, by C. M. Coolidge, undersigned, by M. Hewitt, agent for seller, the sum of fifty and 00-100 ($50.00) dollars, as partial payment for real estate described as follows: All of blocks eight (8) and twenty-nine (29) and lots nine (9) and ten (10) in block nine (9), all in Chamberlin's Colfax addition in the city and county of Denver, Colorado. Said purchaser agrees to pay for said real estate the entire purchase price of twelve hundred and eighty ($1,280) dollars, as follows: fifty and 00-100 ($50.00) dollars on execution of this agreement, receipt above acknowledged; and the balance, twelve hundred and thirty and 00-100 dollars ($1,230) on or before the 15th day of July, 1903; the undersigned seller agrees to sell and convey said real estate to said purchaser on the above terms (furnishing an abstract of title, certified to date, within ten (10) days), and to execute and deliver a good and sufficient warranty deed, conveying said real estate to said purchaser or his assigns, free from all liens or incumbrances, except taxes of 1903, on the 15th day of July, 1903, at the time of the payment of said balance of twelve hundred and thirty ($1,230) dollars at the office of Milward Hewitt, Denver, Colorado. The taxes of 1903 shall be paid by the purchaser. C. M. Coolidge, Seller, by M. Hewitt, Agent. Warwick M. Downing, Purchaser. In the presence of _____.' The $50 therein named was paid by Mr. Downing to Mr. Hewitt, but it was never forwarded to Mr. Coolidge, who, upon notice of the attempted sale, refused to be bound by the contract. Thereafter the contract was assigned by Mr. Downing to the appellant, who brought this suit to enforce its specific performance.

Copies of a part of the letters passing between Mr. Hewitt and the appellee and a copy of the contract were set forth in the complaint. Copies of the remainder of the correspondence were set forth in the answer, which denied the authority of Hewitt, and alleged the pleadings contained copies of all the correspondence. No replication was filed to the answer. These letters, 13 in number, covered a period of time from April 14th to June 18, 1903, and tended to show that Mr. Hewitt, a real estate broker in Denver, was with the knowledge and consent of the appellee attempting to find a purchaser for the lots at such price and upon such terms as were satisfactory to the appellee, who, by his letters, appears to have been undecided and to have changed his mind at various times concerning the selling price and terms. Mr. Hewitt was not a general agent for the appellee, as Mr. Henderson was held to be in the case of Winch v. Edmunds, 34 Colo. 359, 83 P. 632. He did not have charge of the property nor pay the taxes thereon so far as the record discloses. It appears from the entire correspondence that only the letter of June 1, 1903, from the appellee to Hewitt was relied upon for authority in the agent to execute the contract and make this sale. The part relied upon was as follows: 'Your favor received and in reply will say that I would not care to sell the lots for less than twenty dollars per lot and I would only sell for cash. * * * If I only lived in Denver, I would certainly keep them for an investment. * * * If your party wishes them, I will send you the abstracts or copies of the same. I think I know a party here who will give me twenty dollars per lot.' It is claimed by the appellant that Hewitt's act in the execution of the contract of sale as agent for the appellee was fully authorized by the letters passing between them and hence the...