Harding v. Burris

• Decision Date: 06 November 1911
• Citation: 52 Colo. 132,119 P. 1063
• Parties: HARDING et al. v. BURRIS et al.
• Court: Colorado Supreme Court

119 P. 1063

52 Colo. 132

HARDING et al. v. BURRIS et al.

Supreme Court of Colorado

November 6, 1911

Rehearing Denied Jan. 6, 1912.

Error to District Court, El Paso County; W. S. Morris, Judge.

Action by T. A. Harding and another against Allen Burris and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

L. Ward Bannister and Guy Leroy Stevick, for plaintiffs in error.

J. C Helm, Chinn & Strickler, and John R. Dixon, for defendants in error.

HILL J.

The amended complaint in this action is voluminous. It contains about 14,000 words. A demurrer was sustained to this amended complaint. The action was dismissed at the cost of the plaintiffs, who have brought the cause here for review upon error. The contract out of which this contention arose reads as follows:

'This memorandum of agreement, made this tenth day of September A. D. 1898, by and between William M. Burris, of the county of El Paso, state of Colorado, party of the first part, and T. A. Harding, of the city of Des Moines, and state of Iowa, party of the second part: Witnesseth, that, for and in consideration of the sum of three hundred and fifty dollars ($350.00), the receipt of which is hereby acknowledged, paid by the party of the second part to T. M S. Rhett, attorney, to be expended by said Rhett, in the costs and expenses of prosecuting to final determination in the Supreme Court, in the state of Colorado, that certain suit, now pending therein, and entitled 'James Doyle et al. v. Minnie E. Anderson et al.,' and numbered No. 4,563 on the records of the district court of the county of El Paso, state of Colorado. In consideration therefor the said William M. Burris, from each, every and all fruits of said suit, either by compromise or otherwise, whether the same be money, property or stock, agrees that the said T. A. Harding shall receive one-third thereof. And the said William M. Burris transfers, sells and assigns to the said T. A. Harding, one full and undivided third part, parcel and interest in that certain lease and bond on the North Cascade lode mining claim, granted by J. Arthur Connell, and now standing in the name of S. S. Sindlinger, for the use and benefit of the said William M. Burris. Also one full and undivided third part, parcel and interest in that certain contract by and between the said William M. Burris and Benj. Franklin, about and concerning that certain judgment heretofore obtained by one Franklin against the Little May Gold Mining Company in the county court of the county of El Paso. Also one full and undivided third part, parcel and interest in, to and of that certain suit and the proceeds thereof, entitled 'William M. Burris v. The Little May Gold Mining Company,' now pending in the county court of El Paso county, and state of Colorado. And it is further stipulated and agreed that the said T. A. Harding shall not be called upon to pay or contribute any sum of money other than the above-mentioned three hundred and fifty dollars, towards the prosecution of said suit in said Supreme Court of Colorado. And it is further stipulated and agreed that when and as soon as the parties hereto obtain control, at the stockholders' meeting, of the Little May Gold Mining Company, to be held hereafter, that said sum of three hundred and fifty dollars advanced as aforesaid, shall, by due and proper resolution of the said the board of directors of said company, be secured, by lien, upon the assets of said company in favor of the said T. A. Harding. And each and both of the parties hereto contract with the other, that no compromise, settlement or agreement will be made about or concerning said above-mentioned suit No. 4,563; nor about said lease and bond; nor about said Franklin judgment, without the advice and consent of both the parties hereto. Executed in duplicate the day and year first above written. Witness: Wm. M. Burris. T. A. Harding.'

It appears from the complaint that some time after the execution of this contract and the payment of the $350 called for that the original judgment in the suit referred to in the contract was reversed by this court, in which it sustained the validity of the bonds and leases held by William M. Burris and Henry Brandenburg upon certain mining claims, holding that the said Burris and Brandenburg were entitled to specific performance of such leases, as prayed for in their supplemental cross-complaint in the original action. Burris et al. v. Anderson et al., 27 Colo. 506, 62 P. 362.

The plaintiffs here seek to recover a portion of the proceeds derived from the sale of some of these claims. According to the complaint, the judgment of reversal by this court appears to have been made during the month of September, 1900. Thereafter, in pursuance of the mandate of this court, and on or about the 18th of February, 1901, said cause came on again for hearing in the district court of El Paso county, at which time there was a judgment and decree entered, which amond other things, recites: 'Third. That since the rendition of said order and judgment of reversal one Mattie B. Burris has succeeded to all the rights and interest of said William M. Burris and Henry Brandenburg in and to the matters and things in controversy in this suit, and in, under, and by virtue of said order, judgment, and reversal, and ought to be substituted as cross-complainant herein in place of the said cross-complainants aforesaid. * * * It is therefore considered, ordered, adjudged and decreed by the court: First. That the said Mattie B. Burris be, and she hereby is, substituted as defendant and cross-complainant in this action in the place and stead of said William M. Burris and Henry Brandenburg.'

This decree further provided that within five days from that date certain companies and persons make conveyances to Mattie B. Burris of all their right in and to the property, the fruits of which are here in controversy, and in and to other properties not involved herein; that within five days from that date Mattie B. Burris pay and deposit in a bank $60,000, to be distributed to certain persons; that upon such payment or deposit the deeds be delivered to her; that said $60,000 be accepted in full as the purchase price of said properties; that in case she failed or refused to pay said money within the five days as directed, upon satisfactory showing, she would forfeit her claim to said properties, and any interest therein, but that, upon the making of said payment and the delivery of said deeds in full satisfaction of such order, said judgment and decree should be entered of record and become final. This decree was entered on February 18, 1901, from which no appeal was taken. This action was begun on March 16, 1906. The complaint alleges, to the further effect, that thereafter Mattie B. Burris entered into a written contract with the El Paso Gold Mining & Milling Company, whereby she agreed to convey certain of said properties named in said decree, to wit, the Little May and Australia lode mining claims to said company; that the company agreed to pay therefor 400,000 shares of its capital stock; that the said Mattie Burris or William Burris had no money to pay the purchase price called for by the agreements. It is then alleged that, through certain written conveyances, she conveyed the said properties to the El Paso Gold Mining & Milling Company, which agreed to pay therefor 400,000 shares of its capital stock; that this company also found a person who would purchase 250,000 of said 400,000 shares for $100,000, which was done, and out of which the $60,000, as directed by the decree of the district court, was paid; that a large part of the remaining $40,000 was devoted to the clearing up of certain debts and defects in connection with the title of said property, including payment of mechanics' liens, etc.; that the balance of said $40,000, being the major part thereof, was turned over to William Burris or Mattie B. Burris; that the remaining 150,000 shares of said stock, in pursuance of said contract, was not delivered to said Mattie B. Burris, but was delivered to the defendant S. S. Bernard, and held in trust to protect and secure said company against certain defects, mechanics' liens, and judgments against the title of said property, and that the defendant Bernard still holds said 150,000 shares or the major part thereof so in trust; that William M. Burris died prior to the commencement of this action; that Mattie B. Burris and Allen Burris, who are entitled to the stock held by said Bernard, are his sole heirs, etc.

The plaintiff Nesting is alleged to be a part owner by purchase in the interest of the plaintiff Harding to the contract aforesaid. The prayer is for judgment against the defendants for 133,000 shares of said stock, for an accounting, etc and that Bernard be adjudged to hold the stock in trust for the plaintiffs, etc. The special demurrer raises the...