Dyer v. McPhee

• Decision Date: 01 April 1882
• Citation: 6 Colo. 174
• Parties: DYER ET AL. v. McPHEE.
• Court: Colorado Supreme Court

6 Colo. 174

DYER ET AL. v. McPHEE.

Supreme Court of Colorado

April, 1882

Appeal from District Court of Arapahoe County.

ON the trial of this cause in the court below the plaintiff, to maintain the issue on his part, produced as a witness:

TIMOTHY DYER, who, being sworn, testified:

Am one of the defendants; recollect the bond executed by O'Connor as principal, and myself and Murrin as sureties to the lodge. The bond was afterwards delivered up to us by McPhee.

Q. What became of that bond?

A. I paid McPhee $880, and he handed me the bond and I destroyed it.

Plaintiff moves that outside of the statement of the destruction of the bond, the answer be stricken out.

Motion allowed. Defendants except.

CHARLES D. McPHEE, sworn:

Am the plaintiff; know the defendants and O'Connor. I recollect the bond executed by O'Connor and the defendants; it is the bond Dyer says I delivered to him.

The conditions of the bond were, as I recollect them, exactly the same as in the one I gave; saw the bond and read it; it read that O'Connor entered into a contract with the lodge to build their building, and for the performance of that work and for protecting them harmless from any liability. Dyer and Murrin were securities.

In September, 1876, I knew O'Connor was insolvent. In the fall of 1876, I had a talk with defendants about O'Connor's inability to complete the building and pay off the liabilities.

Q. Go on and tell what they said about the inability of O'Connor to meet his liabilities.

Defendants object. Objection overruled.

Defendants except.

A September 14th I had a letter from O'Connor; went to Cheyenne, met O'Connor, and we went to Dyer. Dyer said as they were on the bond, and O'Connor owed us more than all the rest together, this money had best be paid to us, provided we could release him and Murrin from the bond. He said Mr. Nichols had already filed a lien for $420 for work done on this building, and we had a claim of $2,200. He did not know whether the iron and glass were paid for, and some other bills; said they would rather get clear of the bond, and would pay us this, provided they could get off it. At the time I received the bond, about half-past 6 in the evening, Dyer told me to wait until after supper, and Murrin would be in. We went in the small room of the dinning-room; it was about 9 o'clock, Saturday, September 16th. I turned up the corner of the table-cloth; we had three chairs; O'Connor, Murrin and I sat down. Dyer asked me for the bond, and I said, 'Here, Mr. Dyer, here is your bond.' I passed the bond to Dyer, and he stepped out of the room into the bar-room, and came in with the roll of bills. He sat down next to Murrin, unfolded the roll, and said, 'I will count out this money,' and he counted out $880. He said, 'McPhee, I never received this money from you, I received it from O'Connor, and I shall pay it over to O'Connor, and you and O'Connor can fix the matter up the best you know how.' I said, 'Mr. Dyer, that is not the condition of our bond; the conditions agreed upon were that you should pay me this money, and Mr. O' Connor and I can fix our own receipt upstairs,' and with this Murrin stepped up and tapped O'Connor on the shoulder; Murrin stepped into the barroom, followed by O'Connor. O'Connor had the money; Dyer passed it into his hands; I was getting uneasy; Dyer sat there probably a minute or two, and when he got out in the bar-room, asked me if I was not going to drink. I told him no, I did not feel like drinking. I knew it was a trick, still I got nervous, and I looked around and could not find them. Saw Mr. Currigan standing there, and asked him which way they went out. He said he would find them for me. About 3 o'clock I found the four of them together; they were in the saloon next to Murrin's; three of them drinking, and I never saw them any fuller. I asked O'Connor what it meant, and he said they were only playing a joke, and said, 'You need not fret, it will be all right.' I said, 'I take the train Monday morning; my wife has telegraphed me to return.' My wife was liable to be confined any moment. My bond was out. I was out $1,820 before that in another transaction; was out with O'Connor. The whole business just set me about half crazy. Dyer said, 'If you don't go home and shut up your mouth, I will have you in the calaboose in five minutes.' I saw them before this for over an hour-about 11 or 12 o'clock, in the yard in the rear of Murrin's place.

Sunday afternoon I went into Murrin's place and we were talking; I wanted to know about this matter; had stayed over there; this joke was carried too far; think Murrin said it was all fun in the first place. Murrin said, 'There is a building that O'Connor put up for me;' and he said the roof leaked like a riddle, and had cost him $350 to replace it, and he was going to keep that much money. I had an understanding with O'Connor that if they paid me the $880 I was to give $80 of it back, so that it was really $800 that I gave O'Connor credit for.

CHARLES D. McPHEE, cross-examined:

Arrived in Cheynne on the evening of the 14th or 15th, it was Thursday or Friday; was there two days before giving the bond; Saturday I gave the bond. Dyer first suggested my giving the bond in lieu of their bond; I had most of the business with Dyer; made the agreement with both of them at Dyer's; made the agreement with Dyer, Murrin and O'Connor; O'Connor was on both bonds. The agreement was made the day before I gave the bond, and the bond was given in pursuance thereof; never received that money; never got a dollar of it. O'Connor afterwards gave me $500, but not that money; all I know about that is, I have O'Connor's word for it; he gave me the money Sunday night, about 9 o'clock; had made arrangements to go home Sunday night, about 5 o'clock; then I had another dispatch to come home next morning. O'Connor said he raised $500 from outside; it was not out of the money paid by Dyer; said it was money obtained from the Marks & Meyer's job next door. O'Connor was with me when Murrin said O'Connor owed him for the roof, and he was going to keep the money; no one else was present when O'Connor gave me the $500; did not then agree with O'Connor that the other $300 should be paid to me by O'Connor when he made certain collections; he never asked me for such an agreement, because he owed me $1,600; he agreed in the settlement that the $800 should be sent down on Thursday evening following after I left. When we got in the room Dyer called upon me for the bond, and he either took it in his hand or put it in his pocket, walked towards the safe and came back with the roll of bills. Dyer did not say, 'Mac., here is your money,' and lay it on the table. I did not count the money; Dyer did. Did not go to Murrin's house about 3 o'clock; went to his store; did not talk with Murrin until 2 o'clock Sunday. O'Connor came over to the hotel about 11 o'clock and told me how the thing was put up on me, and it was all a game to have some fun on me, and that he would get the money out of them, and tried to pacify me; said it would be all right. At the time Dyer handed the money to O'Connor I said, 'That is not my agreement;' I meant, my agreement is that you shall pay me this money, and I and O'Connor can fix our own receipts.

CHARLES D. McPHEE, re-examined:

It was to Dyer that I said, 'This is not my contract.' My contract was with Dyer, Murrin and O'Connor; it had to be satisfactory to all three; Dyer and Murrin wanted to know if it would be satisfactory to O'Connor to turn me over the money, and if so, we would give the bond and they would give me the money, instead of holding until these lawsuits were settled: O'Connor's part was simply to consent to the arrangement, and they would pay me the money which they had.

M. D. CURRIGAN, sworn:

Know defendants in this case, and O'Connor; was in Cheyenne during the summer of 1876, following my trade of plasterer. Recollect McPhee coming there about the middle of September and having money transactions with O'Connor, Dyer and Murrin. I was in Dyer's office the evening this money was to be paid to McPhee; it was right after supper-8 or 9 o'clock, I presume. Heard the conversation about this money, but did not pay much attention to it; was standing at the counter in the office and bar-room. Dyer came out from the dining-room back of the office; knew Murrin, McPhee and Dyer were in the rear part of the building; was not positive, because did not see them; they were coming in and out all evening. Saw McPhee, Murrin and O'Connor go in then; don't know where they went; saw them going through. Dyer came out and unlocked the safe, took out a roll of bills and threw it down on the counter, and said to me, 'Garvy, I am going to give that money to McPhee.' Staid around there for some time; first one came out, and then another, and there was considerable fuss for a while. Murrin came out and O'Connor, I believe; and after a while McPhee came out pretty quick; he could not see anybody, and stopped around there for some time, and asked me if I knew where they went. At McPhee's request I went out and found them; found Dyer, Murrin and O'Connor in Murrin's place of business. They talked about taking the money from O'Connor and trying to keep McPhee in Cheyenne three or four days longer, or something of that kind. I kind of advised them to keep the whole of the money from McPhee. We went out in the back yard and talked the matter over, and they agreed to carry the programme out. This was, that Murrin was to get some of the money. Don't know whether Dyer was to get any of it; heard him say that O'Connor was owing him, and that he would keep money also. Saw Murrin get some money that night; don't think I saw Dyer get any. ...