Hendrie v. Graham

• Decision Date: 13 November 1899
• Parties: HENDRIE et al. v. GRAHAM. [1]
• Court: Colorado Court of Appeals

59 P. 219

14 Colo.App. 13

HENDRIE et al. v. GRAHAM. ^[1]

Court of Appeals of Colorado

November 13, 1899

Appeal from district court, Arapahoe county.

Petition by Hendrie Bros. & Bolthoff to compel David B. Graham assignee of J.J. Riethmann and the firm of J.J. Riethmann &amp Co., insolvents, to compute dividends on the total amount of their claim. From an order denying the petition, petitioners appeal. Affirmed.

J.J Riethmann and J.J. Riethmann & Co., both the individual and the firm, made assignments for the benefit of creditors prior to January, 1895. At the time of the assignment the individual and the firm were indebted to various parties, and had executed commercial paper to represent the debts. One note, signed by both Riethmann and Riethmann & Co., bearing date January 18, 1894, was executed and delivered to Hendrie Bros. & Bolthoff, whereby the makers promised to pay a year after date, without grace, for value, $43,000 at the State National Bank of Denver, with interest at 10 per cent. semi-annually from date until paid. The note contained also a recital that the makers had deposited with the payees sundry certificates of tramway stock representing some several hundred shares, and authorizing the payees or their assigns, on the nonpayment of the note or any other liability on their part to the payees, to sell the collateral and apply the proceeds. The further conditions of the note need not be stated. On January 18, 1895, after the assignment, Hendrie Bros. & Bolthoff filed an account against the estates of the two assignors, and laid their claim at $45,150. The filing was incorrect, the true amount of the claim, with interest to the date of filing, being subsequently established as $44,166.31. The estates were in the process of settlement for some time prior to the filing of the present petition. During this time Hendrie Bros. & Bolthoff received $1,500 as dividends on the stock, and they were likewise paid some $2,150 as interest, to prevent, according to the allegations of some of the papers appearing in the proceedings, the foreclosure of the collateral. What we shall now state with reference to the present transaction can scarcely be said to be established by evidence or by undenied allegations, but enough appears in the papers, and was stated by counsel on the argument, to warrant the history of it to the extent to which we shall use it.

In 1897 the stockholders of the tramway company were apparently divided into two parties or factions, and there was a struggle between them to obtain control of the corporation. This contest gave the stock thus pledged with Hendrie Bros. & Bolthoff an unusual and undue value, and one, at least, of the contending parties desired to purchase it in order to control the affairs of the tramway corporation. It is not well settled that they had approached Hendrie Bros. & Bolthoff themselves with reference to it, although the petition so alleges, but this seems to be denied. It is unimportant. It is enough to say there was no purchase and no successful attempt to purchase this stock of the pledges by a third party. Parties did go to the assignee, D.B. Graham, and through him attempt to obtain control of the stock. Just how this was done--just what the offer was--is not entirely clear, but substantially it would seem to be that the parties authorized Graham to negotiate with Hendrie Bros. & Bolthoff for the stock, and to pay them for it, if it was necessary to obtain it, the full amount of their claim as filed, $44,166.31. Graham approached the pledges, made them an offer, and that offer was distinct and in writing, and is the only offer and the only matter in the transaction with which we have any concern, or which we have any right to consider. What was said by the assignee to Hendrie Bros. & Bolthoff, or by them to him, is unimportant, and cannot be considered, because both the offer and the acceptance are in writing, and by the terms of these papers the parties are bound. These writings are:

"Denver, Colo., April 30, 1897. To Hendrie Brothers & Bolthoff, or Their Assigns--Gentlemen: The undersigned, David B. Graham, the assignee of the estate of John J. Riethmann & Co., does thereby and herewith tender to you the full sum of forty-four thousand one hundred and sixty-six dollars and thirty-one cents ($44,166.31), the same being the full amount of a certain promissory note held by you against the estate of John J. Riethmann and John J. Riethmann & Co., and duly filed by you as a claim against the said estate, together with the interest thereon to the date of the assignment of the said John J. Riethmann and J.J. Riethmann & Co. for the benefit of their creditors, less amounts of the interest paid thereon; and the undersigned respectfully requests the surrender to him of the said note, together with the certificates representing one thousand (1,000) shares of the Denver Tramway Company's stock, held by you as collateral security for the payment of said note. [ Signed] David B. Graham, Assignee."

"Denver, Colo., April 30, 1897. Received of David B. Graham, as assignee of the estate of John J. Riethmann and John J. Riethmann & Co., the full sum of forty-four thousand one hundred and sixty-six dollars and thirty-one cents ($44,166.31), the same being the amount in full of a certain promissory note heretofore held by the undersigned against the estate of John J. Riethmann and John J. Riethmann & Co., the said note being for the principal sum of forty-three thousand ($43,000) dollars, and dated January 18, 1894, and being secured by one thousand (1,000) shares of the capital stock of the Denver Tramway Company, and said note, together with the said stock, has been duly turned over and delivered to the said assignee. [ Signed] Hendrie Brothers & Bolthoff." On the acceptance of the proposition in this form, the assignee presented his petition to the district court, asking for specific authority to take the money and apply it to the payment of Hendrie Bros. & Bolthoff's claim, or else he paid the claim, and had it duly approved afterwards. Whichever way he did it, the court approved the proceedings, Hendrie Bros. & Bolthoff got the money, to wit, the total amount of the claim, surrendered the stock, surrendered the note, and, so far as this record shows, thereafter had no claim whatever against either estate. It is apparent from the amount of the claim as paid, from the date of the proof of it, and the date of the payment, that there was a very considerable amount of interest which accumulated on the original claim from the time it was filed until this transaction. Hendrie Bros. & Bolthoff presented a petition to the district court praying for a direction to the assignee to compute dividends on the total amount of their claim until they should receive a sum equal to the unpaid interest. The petition was denied, and the parties bring the case here.

R.D. Thompson and Harvey Riddell, for appellants.

Hartzell & Steele, for appellee.

BISSELL P.J. (after stating the facts).

The right of the petitioners to demand payment of the dividends on the amount of their claim, as filed against the assigned estates, must be measured by the terms of the written offer of the assignee and its acceptance by ...