Ehrich v. Durkee

• Decision Date: 08 June 1903
• Citation: 72 P. 814,18 Colo.App. 502
• Parties: EHRICH v. DURKEE.
• Court: Colorado Court of Appeals

72 P. 814

18 Colo.App. 502

EHRICH v. DURKEE.

Court of Appeals of Colorado

June 8, 1903

Appeal from El Paso County Court.

Action by Rose M. Durkee against Louis R. Ehrich. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Lunt Brooks & Willcox, for appellant.

Charles H. Dudley, for appellee.

MAXWELL J.

January 10, 1893, Charles E. Durkee was a creditor of the Ute Pass Land & Water Company to the amount of $657.08. $487.80 of this amount was to be paid in land, and the balance in cash. Previous to above date, Durkee had commenced a suit in attachment against the company for the purpose of enforcing payment of his claim. Appellant was president of the Ute Pass Land & Water Company. As the result of an interview between Durkee and Ehrich, the following contract was entered into by them:

"This agreement made and entered into this 10th day of January, A.D.1893, by and between Louis R. Ehrich of El Paso county, Colorado, of the first part, and Charles E. Durkee of the same place of the second part:

"Witnesseth: that for and in consideration of the sum of one dollar ($1.00) to the said first party in hand paid by said second party, the receipt whereof is hereby acknowledged, and also in further consideration that said second party will take such action only in his certain suit now pending in the district court of El Paso county, Colorado, against the Ute Pass Land & Water Company as said first party may direct, said first party hereby agrees to and with the said second party that he will convey or cause to be conveyed unto said second party within the year 1893, certain lots or parcels of land embraced within what is known as said Ute Pass Land & Water Company's town site excepting therefrom lots 38, 39, 40, 41, 59, 60 and 61 in El Paso county, Colorado, which embraces the lands heretofore levied upon by said second party in his said suit against said Ute Pass Land and Water Company as said second party may within said year at any time select; the said lands or parcels of land to be thus conveyed, shall be sufficient in number, extent and area to be of the value of four hundred and eighty-seven dollars and eighty cents ($487.80) at a valuation of said lands and premises not exceeding one thousand dollars ($1,000) per acre and at as much less a valuation thereupon as said first party or others in charge and control of the said lands and premises, shall hereafter and within three (3) months from the date hereof fix upon it as a scheduled valuation thereof, and further, that said first party will convey the said lots or parcels of lands to said second party or cause the same to be done as aforesaid by good and sufficient deed or deeds of warranty and fully free and clear of all encumbrances, liens and taxes whatsoever, so as to perfect in said second party a good and perfect title thereto in fee simple immediately upon such conveyance.

"And said first party further agrees to and with the said second party that in the event of his failure to make the said conveyance or conveyances as aforesaid, or to cause the same to be done within the time above limited, then the said first party shall immediately upon the expiration of one year from the date hereof become personally indebted to said second party in the said sum of four hundred and eighty-seven dollars and eighty cents ($487.80) which shall thereupon immediately become due and payable to said second party from said first party without grace or any further extension whatever in any event. Executed in duplicate.

"In witness whereof the parties have hereunto set their hands this 10th day of January, A.D.1893. [ Signed] Louis R. Ehrich. C.E. Durkee."

Under date of December 28, 1893, Durkee made the following demand in writing upon the appellant:

"Colo. Springs, Colo., Dec. 28th, 1893. Louis R. Ehrich, Esq., Colorado Springs, Colo.--Dear Sir: In pursuance of our agreement of January 10th, A.D.1893, I am entitled to about 487/1000 of an acre under the agreement, and I select the same off the southerly portion of lot 19 in the Ute Pass Land & Water Company's town site, the same to be bounded on the southerly side by lot 20; on the westerly side by lot 18; on the easterly side by Carnia road or street, and the same to be such width from north to south as is necessary to make the amount of land I am entitled to, and to be bounded on the northerly side by a line parallel to dividing line between lots 19 and 20, and I ask of you a warranty deed of said premises, conveying a clear title, as per our agreement of January 10th, A.D.1893. C.E. Durkee."

The complaint set forth the contract and demand, alleged performance on part of plaintiff, the failure of defendant to convey or cause to be conveyed the land, and prayed judgment for $487.80 and interest. The answer admitted the execution and delivery of the contract; denied selection of the land by a sufficient description; alleged that the contract was without consideration; that the land was the property of the Ute Pass Land & Water Company; that defendant was acting solely as...