Appeal
from a decision overruling appellant's demurrer to
appellee's complaint. In the court below, Hugh Butler and
Anson Wolcott were joined as defendants with appellant; the
following facts being alleged in the complaint: '
First. That on, to-wit, the 13th day of August
1885, he was the owner of the undivided three-sixteenths of
the Pocohontas lode and mining claim, and the undivided
one-half of the Rockport lode and mining claim, both situate
in the Tomichi mining district, in the county of Gunnison and
state of Colorado. Second. That on the said
last-mentioned day he entered into a contract with the said
Anson Wolcott, for himself, and with the said Amos Henderson
by the said Anson Wolcott, acting as his agent, and
authorized thereunto, by which he was to convey to the said
Anson Wolcott and Amos Henderson, by a good and sufficient
deed, his said above-described interest in and to the said
Pocohontas and Rockport lodes and mining claims. That, in
consideration of the said conveyance, the said Anson Wolcott
and Amos Henderson (said Wolcott acting for himself, and the
said Henderson acting through his agent, as aforesaid) were
to execute their two several promissory notes unto this
plaintiff,--one due sixty days after the date thereof
to-wit, the 13th day of August, 1885, for $500, at the Union
Bank of Greeley, at Greeley, Colo., with interest from said
date at ten per cent. per annum; and the other due one year
after the lastmentioned date, made payable to the order of
plaintiff, for the sum of two thousand dollars, payable at
the Union Bank of Greeley, at Greeley, Colo., with interest
from said date at ten per cent. per annum. Third.
That at the time the said contract was entered into, and as a
part thereof, it was agreed by and between the said plaintiff
and the said Wolcott and Henderson, as aforesaid, that the
said two notes, when executed, and the said deed of
conveyance, when executed and acknowledged, were to be
deposited with the defendant Butler, and the same were to be
held by the said defendant Hugh Butler, until this plaintiff
should produce to the said Butler an abstract of title
showing his right to convey to the said Wolcott and Henderson
the said interests in the lodes and mining claims aforesaid
whereupon, and as soon as the said plaintiff had produced to
the said Butler an abstract of title showing his right to
convey the said interests in the mining claims and lodes as
aforesaid, the said Butler was to deliver to plaintiff the
said two promissory notes, and to deliver to the defendants
Wolcott and Henderson the deed of conveyance, as aforesaid.
Fourth. That, upon the making of the said agreement,
the said plaintiff, on the 13th day of August, as aforesaid,
did make, execute, and acknowledge a mining deed, to the
approval and satisfaction of the defendants Wolcott and
Henderson, for the interests in the lodes aforesaid; a copy
of which deed and the acknowledgment thereof is as follows,
to-wit: [Here follows a deed from plaintiff to the defendants
Henderson and Wolcott, in the usual form for conveying
unpatented mining property, duly acknowledged.] And
thereupon, upon the execution and acknowledgment of the deed
as aforesaid, the said Wolcott for himself, and the said
Henderson by his agent, Anson Wolcott, so authorized to act,
did execute their two several promissory notes, in accordance
with the terms of the agreement hereinbefore set out; that
is, one for the sum of five hundred dollars, due sixty days
after date, and one of two thousand dollars, due one year
after date; both made payable to the order of plaintiff at
the Union Bank of Greeley, at Greeley, Colo., and bearing
interest from date at ten per cent. per annum. * * *
Fifth. That upon the execution and acknowledgment of
the said deed, and the execution of the said notes, as
aforesaid, the plaintiff and the said Wolcott and Henderson,
in acordance with the terms of their said agreement, did
deliver them to the defendant Hugh Butler; and the said
Butler thereupon executed his receipt or acknowledgment in
writing to the plaintiff and the said Wolcott and Henderson,
and which receipt or acknowledgment is in the words and
figures following, that is to say: [Here is given the receipt
or contract of escrow signed by Mr. Butler, which is given in
the opinion of the court.] And thereupon, and further in
pursuance of the agreement hereinbefore set out, the said
plaintiff did execute and deliver unto the said Wolcott and
Henderson the following instrument in writing, to-wit:
[Herefollows the instrument of writing signed by appellee,
and copied in full in the opinion.]' Then follows an
allegation to the effect that the defendants Wolcott and
Henderson entered into and took possession of and worked and
mined the property described in the said deed of conveyance.
' Sixth. That in pursuance of the said
agreement, entered into by the plaintiff, and the obligation
thereby upon him imposed, he did on or before the 22d day of
October, A. D. 1885, produce to the said defendant Butler an
abstract of title showing his right to convey to the said
Henderson and Wolcott the said undivided three-sixteenths of
the said Pocohontas lode, and the undivided one-half of the
Rockport lode; and he did also produce to the said Hugh
Butler all other evidence of right and title required of him
by said Butler to satisfy and show unto him that plaintiff
had a right at the date of the said contract to convey to the
said Henderson and Wolcott the interests in the said mining
property aforesaid; and that the said defendant Butler did on
or before the last date aforesaid express himself unto the
plaintiff and to the defendants Wolcott and Henderson as
being perfecly satisfied that the title of this plaintiff to
the properties as aforesaid was perfect, and that he had good
power and lawful right to convey the same to them.
Seventh. That notwithstanding the plaintiff has done
everything required to be done and performed by him under the
terms of the said contract, and with reference to the same,
the said defendants Wolcott and Henderson did notify the said
defendant Butler that he should not deliver to plaintiff the
said two promissory notes, or either of them; and, because of
the said notice from the said defendants, the said Butler,
although he recognizes the right of the plaintiff to the
possession of the said notes under the terms of the said
contract, has refused, and still does refuse, and has failed,
to deliver to plaintiff the said notes, or either of them,
though often requested so to do. Wherefore the plaintiff
prays:-- First, that he have judgment against the
defendant Hugh Butler, requiring him to deliver up to the
plaintiff the said two promissory notes, and each of them;
second, that he have judgment against the said
Wolcott and Henderson for the sum of five hundred dollars
upon one of the notes aforesaid, with interest thereon from
the date it became due; third, that he have judgment
for the costs of this suit against the said defendants
Wolcott and Henderson, and for all other and proper relief in
the premises.' The above complaint was demurred to by the
defendant Henderson for the following reasons: '(1) That
said complaint does not state facts sufficient to constitute
a cause of action; (2) that there is a misjoinder of parties
defendant to this action; (3) that several causes of action
have been improperly united in this action.'
1. The
general rule is that a demurrer which does not distinctly
specify the grounds of...
