Galbreath v. Wallrich

• Decision Date: 06 June 1910
• Citation: 48 Colo. 127,109 P. 417
• Parties: GALBREATH v. WALLRICH et al.
• Court: Colorado Supreme Court

109 P. 417

48 Colo. 127

GALBREATH v. WALLRICH et al.

Supreme Court of Colorado

June 6, 1910

Application for mandamus by Charles A. Galbreath, surviving partner of the firm of Galbreath & Co., against Christian Wallrich and others and the District Court of the Twelfth Judicial District and another. Writ allowed.

Hayt Dawson & Wright, for petitioner.

Richardson & Hawkins, for respondents.

GABBERT J.

Galbreath v. Wallrich, 45 Colo. 537, 102 P. 1085, was an appeal from a judgment rendered in an action brought by Charles A Galbreath and Wilmot E. Broad, as copartners, against Christian Wallrich, J. H. Kellogg, and Charles A. Galbreath to recover the balance of the purchase price for property which Galbreath and Broad claimed to have sold to Wallrich and his codefendants. The latter, by way of defense, sought to have the contract of purchase rescinded upon the ground that they had not received the principal part of the property they had bargained to purchase. The trial court sustained this contention and rendered judgment rescinding the contract of sale and for the purchase money which defendants had paid plaintiffs. The latter appealed, with the result that the judgment of the district court was reversed and the cause remanded, with directions to enter judgment in favor of plaintiffs for the balance of the purchase money remaining unpaid. It will be observed that Galbreath was a vendor, as well as vendee. This arises from the fact that plaintiffs were conducting the business and owned the property as a firm, and in this capacity sold to the defendants, with whom Galbreath was associated as a purchaser.

It appears that, when the suit was brought by plaintiffs (although not mentioned in the opinion because not material to any question involved in the appeal), they secured the appointment of a receiver who took possession of the property, which was the subject of sale and purchase. After the cause was remanded to the trial court, Wallrich and Kellogg presented their supplemental answer and cross-complaint, in which they charged in substance that after the original judgment was rendered by the trial court the plaintiffs filed a petition for the discharge of the receiver; that they secured his discharge, and thereby secured possession of all the property involved in the litigation, and have ever since had the use and benefit of such property, have wasted and disposed of a large part of it, and have refused to account to Wallrich and Kellogg therefor. They further allege that, pursuant to the order discharging the receiver, plaintiffs elected to, and did, receive all of such property, and have resumed full and complete control thereof; and hence should not have a judgment for the balance of the purchase price as directed by the Supreme Court. Based on these allegations, the defendants prayed that plaintiffs be adjudged not entitled to any judgment whatever, and that they, the defendants, recover from plaintiffs the amount of the purchase price paid, or, if this relief is denied, that plaintiffs be required to account for the property by them received, and 'that any amount or amounts for which the plaintiffs should, in equity and good conscience, be held responsible, shall be considered and taken to be a credit upon the judgment ordered to be entered herein, and that the proceeds arising from such judgment be ordered to be held in the registry of this court by the clerk or other officer thereof, as security for any amount or amounts so found due under said accounting, and that only the balance, if there be any balance, at the end of such accounting be turned over to the plaintiffs, and if there be no such balance in favor of the plaintiffs, but a balance in favor of the defendants, Wallrich and Kellogg, that a judgment be entered for such balance.' Broad has departed this life, and subsequent to the judgment directed by this court and before the issuance of a remittitur, which has since been duly issued and filed in the district court, an order of this court was obtained, permitting Galbreath to continue the cause as surviving partner of the firm of Galbreath & Co. Plaintiff Galbreath, as the surviving partner of the firm of Galbreath & Co., also obtained an order of the district court allowing him to proceed in his own name, and in this capacity objected to the filing of this supplemental answer and cross-complaint, and requested and moved the court to enter judgment in accordance with the mandate of this court, as directed by the remittitur then on file. Upon this motion the court entered the following order: 'It is ordered that said defendants be, and they are hereby, allowed to file said supplemental answer and cross-complaint; and it is further ordered that the plaintiff's motion asking that judgment be entered herein be at the present time refused.' Later plaintiff filed a motion to strike the supplemental answer and cross-complaint, based upon the ground that the matters and things therein alleged must be determined in an independent action, and that the authority of the trial court in the premises was limited to the rendition of the judgment which the Supreme Court had directed. This motion was denied. Thereafter plaintiff presented to this court his petition setting forth the foregoing facts, requesting an order commanding the district court to forthwith enter a judgment in accordance with the opinion and mandate of this court, as directed in Galbreath v. Wallrich, supra. On this petition a rule to show cause why the prayer thereof should not be granted was issued and served. By the pleading filed on behalf of the respondents and the briefs of counsel, the sole question presented for our consideration is whether or not the district court should be peremptorily ordered to enter the judgment directed by this court, thus remitting Wallrich and Kellogg to the remedy of an independent action against the plaintiff, instead of permitting them at this time to reduce the judgment ordered by this court in such sum as the...