Goodwin v. Hamilton

• Decision Date: 12 September 1891
• Citation: 27 P. 584,7 Utah 475
• Court: Utah Supreme Court
• Parties: J. M. GOODWIN, RESPONDENT, v. A. N. HAMILTON, AND OTHERS, APPELLANTS

27 P. 584

7 Utah 475

J. M. GOODWIN, RESPONDENT, v. A. N. HAMILTON, AND OTHERS, APPELLANTS

Supreme Court of Utah

September 12, 1891

APPEAL from a judgment of the district court of the third district. The opinion states the facts.

Affirmed.

Mr Jabez G. Sutherland, for the appellants.

Mr Arthur Brown, for the respondent.

ZANE C. J. BLACKBURN, J., and MINER, J., concurred.

OPINION

ZANE, C. J.:

The court below found that prior to 1886 the plaintiff and the defendant A. N. Hamilton were the owners of 120 acres of land, situated within the limits of Salt Lake City; that each owned an undivided one-half of it, subject to a mortgage of $ 3,000; that Hamilton, for himself, and by virtue of a power of attorney from Goodwin, conveyed the same to defendant DeLashmutt, in pursuance of a contract requiring him to divide it into lots and blocks, and dispose of it to the best advantage; and to retain of the proceeds such money as he might advance in platting and selling, and such as he might pay to remove the mortgage, and one-fourth of the net proceeds, and to pay to Goodwin and Hamilton the other three-fourths. There was evidence tending to prove that the defendant A. N. Hamilton, before the institution of this suit, assigned all of his interest in the land and by virtue of the contract to his wife, Mary A. Hamilton. As to that issue the court found that no assignment was made until after the sale of the land by DeLashmutt to the purchasers Kinney and Gourlay, on the 2d day of July, 1887; and further, that, if any such assignment was made after that time, it was immaterial to the rights of the parties. Mrs. Hamilton is not a party to this suit, and, if she has a substantial equity in these funds, she will be at liberty to institute proceedings to obtain it.

We are not disposed to disturb this finding of the court below. It appears further from the findings and the evidence that DeLashmutt advanced to plaintiff and defendant Hamilton $ 1,000, upon which he was entitled by the contract to ten per cent. per annum interest until repaid; that plaintiff and Hamilton negotiated the sale of the property for $ 10,000 and that DeLashmutt executed and delivered the deed; that it was not platted and sold in lots, and that it would have brought much more if it had been so platted and sold, as the contract required. The court below allowed DeLashmutt the amount advanced by him and interest, as provided by the...