Farmers Elevator Co. of Sterling v. Morgan, 23717

• Decision Date: 21 September 1970
• Docket Number: No. 23717,23717
• Citation: 474 P.2d 617,172 Colo. 545
• Parties: FARMERS ELEVATOR COMPANY OF STERLING, a Colorado corporation, Plaintiff in Error, v. Larry MORGAN, E. D. Dressel, d/b/a E. D. Dressel Feed & Seed Co., J. Boggs, a/k/a J. B. Bell, Myron Karsten, and the First National Bank of Fleming, a national banking corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 617

474 P.2d 617

172 Colo. 545

FARMERS ELEVATOR COMPANY OF STERLING, a Colorado corporation, Plaintiff in Error, v. Larry MORGAN, E. D. Dressel, d/b/a E. D. Dressel Feed & Seed Co., J. Boggs, a/k/a J. B. Bell, Myron Karsten, and the First National Bank of Fleming, a national banking corporation, Defendants in Error.

No. 23717.

Supreme Court of Colorado, En Banc.

Sept. 21, 1970.

As Modified on Denial of Rehearing Oct. 5, 1970.

Benedetti & Fennie, Francis A. Benedetti, Wray, for plaintiff in error.

Sandhouse & Sandhouse, Charles H. Sandhouse, Sterling, for defendant in error, E. D. Dressel.

J. H. Howard, Denver, for defendant in error Larry Morgan.

GROVES, Justice.

The parties appear here in the same order as in the trial court. In its complaint the plaintiff alleged that one of the defendants had fraudulently converted grain to his own use and that the other defendants, including the First National Bank of Fleming and Myron Karsten, were involved in a civil conspiracy relating to the conversion. During trial the Bank and Mr. Karsten moved for dismissal as to them, to which motion the plaintiff did not object. The motion was granted. On the next trial day, attention of the court was directed to an agreement between the plaintiff, the Bank and Mr. Karsten made prior to the presentation of the motion to dismiss. In it the plaintiff agreed not to object to the motion. The court ruled that the agreement was a release of some of the alleged joint tort-feasors and, therefore, the remaining defendants were released. The court dismissed the action. We reverse.

There were pending three other actions in which the plaintiff, the Bank, and Mr. Karsten were parties. After the sixth day of trial the plaintiff, the Bank and Mr Karsten entered into a written agreement which commenced as follows:

'IT IS AGREED:

'1. At the close of plaintiff's case in Civil Action No. 11295 in the District Court of Logan County, plaintiffs will not oppose a motion of defendants First National Bank of Fleming and Myron Karsten to dismiss as against them on the ground that plaintiffs have failed to prove facts sufficient to constitute a claim for relief against them. If such motion is granted:

'(a) All other cases pending between plaintiffs and defendants First National Bank of Fleming and Myron Karsten (including all counterclaims) will be dismissed with prejudice.'

The agreement contained a number of further contractual provisions relating to the parties thereto all conditioned upon the granting of the motion to dismiss.

The next morning in chambers the following occurred:

'MR. BENEDETTI: At this time, the record may show that the plaintiffs rest their case as to the defendant, Myron Karsten and the First National Bank of Fleming, Colorado, only, because having fully considered the evidence already adduced and additional evidence we have to present, we have concluded that we cannot show knowledge and participation in the conspiracy and fraud insofar as those defendants only are concerned.

'MR. WINNER: At which time the defendants, Myron Karsten and the First National Bank of Fleming move to dismiss on the grounds that the plaintiffs have failed to prove facts sufficient to constitute a claim for relief against these defendants.

'THE COURT: The plaintiffs, having confessed the failure to produce evidence sufficient to make a prima facie case against the defendants, Myron Karsten and the First National Bank of Fleming, and upon the motion of the counsel for the First National Bank of Fleming and Myron Karsten, the Court will grant the motion to dismiss and order a judgment of dismissal be entered by the Clerk of the Court in favor of Myron Karsten and the First National Bank of Fleming and against the plaintiffs.'

During the eighth trial day counsel for the defendant Dressel stated to the court that he had information that the dismissal of the Bank and Mr. Karsten had resulted from a written agreement with the plaintiff. The agreement was produced and supplemental pleadings relating to it were prepared and filed. Following argument, the court dismissed the complaint as to the remaining defendants and discharged the jury. The court found that the agreement constituted a release of the Bank and Mr. Karsten; that the dismissal entered as to them was not under R.C.P.Colo....