Hallack v. Loft

• Court: Colorado Supreme Court
• Writing for the Court: ELLIOTT, J., (after stating the facts.)
• Citation: Hallack v. Loft, 19 Colo. 74, 34 P. 568 (Colo. 1893)
• Decision Date: 16 October 1893
• Parties: HALLACK v. LOFT.

34 P. 568

19 Colo. 74

HALLACK v. LOFT.

Supreme Court of Colorado

October 16, 1893

Appeal from district court, Arapahoe county.

Action by Hans P. Loft, administrator de bonis non of the estate of Alexander Hansen deceased, against Erastus F. Hallack to recover money alleged to have been wrongfully withheld from decedent by reason of fraud and mistake in settlement of accounts. Plaintiff had judgment, and defendant appeals. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Hans P Loft, as administrator of Alexander Hansen, was plaintiff below, and Erastus F. Hallack was defendant. The pleadings upon which the cause was tried, so far as the same are necessary to an understanding of the opinion, are, in substance, as follows:

Complaint Plaintiff pleads that Hansen died November 29, 1888; that on December 8, 1888, Loft was duly appointed and qualified as administrator de bonis non of Hansen's estate, and has ever since continued to act in such capacity. That on January 16, 1888, Hansen and defendant, Hallack, had an accounting of certain extended dealings and long accounts theretofore standing between them, whereby, as was then supposed by said Hansen, all said dealings and accounts were finally settled the defendant therein giving to the said Hansen a receipt in full of all demands he had against him; but plaintiff alleges that, in the final account rendered by the defendant then and there to the said Hansen, several mistakes occurred against the said Hansen, whereby the said Hansen suffered damage in the sum of $2,182.04. That the said defendant, in his account to the said Hansen, on July 16, 1887, charged him as follows 'Pay roll for June, $2,044.35; Pd. Dreyfuss, $75.00; A Brown, pay roll, $51.79,'--and that in the defendant's account, rendered to the said Hansen on September 19, 1887, he charged the said Hansen with the same items, and that on January 10, 1887, Hansen obtained $10.90 from defendant to pay expenses of a witness for the defendant in a certain suit then pending in the United States court at Denver, and which the said Hansen then and there paid out for the use of defendant, and that defendant afterwards charged said sum against him in the accounts between them wherein said accounting was had. That Hansen did not, at the date of said accounting, know of said mistakes, etc., and that on June 1, 1888, said Hansen demanded the payment of said sum of money, but defendant refused and still refuses to pay the same, or any part thereof. 'Wherefore, plaintiff demands judgment,' etc.

Answer 'That on and prior to the 18th day of September, A. D. 1889, there was pending in this court a certain cause wherein the plaintiff herein was plaintiff, and the defendant herein was defendant, which cause is numbered 9,929 of the records of this court, and wherein this plaintiff set up the identical cause of action that is set up in this cause, and in almost the identical words of the complaint filed herein, as by the records of said suit now remaining in the said district court more fully appears. And this defendant says that the parties in this and the said former suit are the same, and are not other or different persons, and that the said former suit was, until the said 18th day of September, A. D. 1889, pending in this court, and that on the date last aforesaid the same was fully settled by and between the plaintiff herein and the defendant herein, and dismissed at plaintiff's costs, and said dismissal entered to record, as per stipulation of the parties then and there made and entered into, and that there was no reservation in said stipulation of dismissal on behalf of the plaintiff in any manner; and this defendant says that all the matters and things involved in the said former action and in this action have been fully settled by and between the parties herein, and judgment rendered thereon, in said cause 9,929. * * * Wherefore, defendant demands judgment,' etc.

Replication: The replication, among other things, contained the following, in substance: Plaintiff admits the pendency of cause No. 9,929, and that the parties and cause of action therein were the same as in this action, but denies that on September 18, 1889, or at any other time, the said action numbered 9,929, referred to in said answer, was fully or at all settled by or between the plaintiff and defendant herein, or that the same was, by the plaintiff, or by any one authorized by him, on said day or at any other time, settled in full or at all, or dismissed at plaintiff's costs, or that said pretended dismissal was entered of record as per the stipulation of the plaintiff, or of any one authorized or empowered by him, or with any authority so to do. That said pretended settlement and stipulation were made, if at all, without the knowledge or consent of the plaintiff, and without any authority from him, or from the probate court of Arapahoe county, or from any other source, and were and are wholly unauthorized, illegal, and void, as to this plaintiff. * * * That said pretended settlement and stipulation purport to have been and were made and entered into, if at all, by Samuel E. Browne, or the law firm of Browne & Putnam, of which the said Browne is a member, which said firm were at the time the attorneys of record of the plaintiff in said action numbered 9,929 in said court; but that the said Browne was not at the time, nor was the said firm of Browne & Putnam on September 18, 1889, nor at any other time, authorized, instructed, or empowered by the plaintiff, or by the probate court of Arapahoe county, nor had they, or either of them, any authority or right, to make the said pretended or any settlement of said action, or to enter into the said pretended or any stipulation with said defendant, or in pursuance thereof, or otherwise, to enter or cause to be entered therein an order of dismissal in said action, but that the action of said Browne & Putnam, and of each and every of them, was without the knowledge or consent of the plaintiff, and unauthorized by him, or the said probate court of Arapahoe county, and beyond the scope of their, and each of their, authority, as the attorneys of the plaintiff, and that the plaintiff was not, at the time of the alleged settlement, informed by the said Browne & Putnam, or either of them, of the same, nor has he ever been informed by them, or either of them, of the terms thereof. * * *

The trial: At the opening of the trial, defendant, by his counsel, formally announced that he had determined to rely entirely upon his plea of former judgment as a bar to the action, and that he admitted the error of $2,182.04, as stated in the complaint. Thus, plaintiff's original cause of action was fully admitted, and the burden of proof was upon defendant to sustain his plea of former judgment, or res judicata. The complaint, answer, stipulation, and judgment in the former case (No. 9,929) were offered in evidence in behalf of defendant in support of his plea of res judicata. The complaint corresponds to defendant's plea. The answer was a general denial. The stipulation, after the title of the action, was as follows: 'The above entitled action is settled, and hereby is dismissed at the unpaid costs of the plaintiff, and said dismissal may be entered of record. Browne & Putnam, Plaintiff's Attorneys. Rogers, Cuthbert & Ellis, Attorneys for Defendant. Sept. 18, 1889.' The stipulation bore the usual indorsements and file mark by the clerk, dated September 18, 1889. The record of the judgment following the title of the cause, was as follows: 'At this day, pursuant to a stipulation filed herein, it is ordered by the court that this cause be, and the sall, hereby is, dismissed, at the costs of the said plaintiff, to be taxed.' In behalf of plaintiff, this evidence was objected to on the ground that the authority of the attorneys, Browne & Putnam, to make the settlement, had not been shown, and that the evidence offered was not proper until such authority should be shown, but the court overruled the objection. The stipulation, pleadings, and judgment were then received in evidence without proof of the authority of the attorneys of plaintiff, Loft, to make the stipulation in his behalf. This ruling was duly excepted to, and is made the ground of a cross assignment of errors. Upon the evidence thus produced, defendant rested his entire defense. Plaintiff, Hans Peter Loft, was then sworn as a witness in his own behalf. He testified that he was administrator of Alexander Hansen on September 18, 1889. Was plaintiff in the former suit (No. 9,929) against defendant Hallack. That the former suit was for the same cause of action as this suit. That Browne & Putnam were his attorneys in that suit, but that he never authorized said attorneys, or either of them, or anybody else, to settle the former suit, and that in fact he was never informed that there had been any settlement. That he had asked Mr. Browne, several times, what became of the Hallack case,--asked him several times if anything came out of that case,--and that Mr. Browne said: 'No, the thing has been dropped. There is nothing in it.' That neither Mr. Browne nor Putnam, nor either of them, ever notified him or told him previous to September 18, 1889, or at any other time, that the settlement of that cause was made, or would be made, by them. Counsel for defendant objected to this testimony for the reason that is was immaterial, irrelevant, improper, and was an attempt to make a collateral attack upon the force and effect of the judgment of the court, as read in evidence, but the court overruled the objection; and to this ruling defendant, by his counsel, excepted. This ruling is assigned for error by appellant. The court rendered a finding and judgment in favor of plai...