Hurd v. Fleck

• Decision Date: 02 October 1905
• Citation: 34 Colo. 262,82 P. 485
• Parties: HURD et al. v. FLECK.
• Court: Colorado Supreme Court

82 P. 485

34 Colo. 262

HURD et al. v. FLECK.

Supreme Court of Colorado

October 2, 1905

Error to Eagle County Court; P. Tague, Judge.

Action by Angeline Hurd, as administratrix, etc., and others against Mack Fleck. From a judgment in favor of defendant plaintiffs bring error. Affirmed.

A. J. Sterling, for plaintiffs in error.

L. R Thomas and P. W. Monahan, for defendant in error.

CAMPBELL J.

The plaintiffs in error, as plaintiffs below, brought this action to rescind a contract of sale of real estate made with defendant by one purporting to be its sole owner, but which, as it is alleged, was owned in part by other persons to whose interests plaintiffs in their individual and representative capacities have succeeded. All the former alleged owners are dead, and plaintiffs sue as their heirs at law and personal representatives. The complaint asks for relief upon two grounds: First, that at the time the contract of sale was made the land in question was owned by three members of a nontrading or noncommercial copartnership, and that only one of them made the contract, and that he did so, to defendant's knowledge, wrongfully and without any authority whatever from either of the other two; second, assuming the authority of the contracting partner to sell, and that the contract was valid when made, the defendant has forfeited his rights thereunder, and plaintiffs are entitled to its rescission by its express terms, because of a failure of defendant to perform the conditions and covenants which were thereby devolved upon him. The answer denies the existence of the copartnership and its ownership of the lands in question, and defendant's knowledge of the same, and avers the validity of the contract and the full performance by defendant of every condition which he was required to perform up to the time of the bringing of the action, and by way of cross-complaint sets up a state of facts which, if established by proof, authorizes a decree quieting title in him. After demurrer to the answer, its various defenses, and cross-complaint, on the ground of insufficiency, was overruled, plaintiffs by replication put in issue its affirmative averments. At plaintiffs' request a jury was called, which, in answer to a number of interrogatories propounded by the court, made specific findings of fact which were in favor of the defendant upon all the material questions in issue. Only a few of the many assignments of error argued merit consideration. At the threshold we observe that by the failure of plaintiffs in error to include in the abstract of the record a copy of or reference to the decree and the special findings made by the jury, which were confirmed and added to by the court, the writ might summarily be dismissed under rule 14 (80 P. viii). Since, however, the few questions involved are easily disposed of, we proceed to take them up in their order.

The proposition advanced by plaintiffs in error, that one of several members of a nontrading or noncommercial copartnership cannot sell or convey land owned by the copartnership without authority of his associates, is not material here. If it be conceded that when the contract of sale was made the land was owned by the copartnership, and that the contracting member had no authority from the others to sell it, defendant's rights are not thereby affected unless he...