Markell v. Matthews

• Decision Date: 09 May 1892
• Citation: 32 P. 176,3 Colo.App. 49
• Parties: MARKELL v. MATTHEWS et al. [1]
• Court: Colorado Court of Appeals

32 P. 176

3 Colo.App. 49

MARKELL v. MATTHEWS et al. ^[1]

Court of Appeals of Colorado

May 9, 1892

Appeal from district court, Pitkin county; Thomas A. Rucker, Judge.

Action by James F. Matthews and William J. Chamberlain against Clinton Markell to recover money advanced. Judgment for plaintiffs, and defendant appeals. Affirmed.

Chas I. Thomson and Oscar Reuter, for appellant.

F.G Salmon, Wilson & Stinson, and F.S. Rice, for appellees.

BISSELL J.

There are no legal propositions of much difficulty to be settled and applied in determining the rights of the parties to this controversy. The application of the well-settled principle of adoption or ratification will determine the whole matter. It is only needful to state the controversy to make it apparent that this principle must control the judgment. In 1886 the appellant, Markell, and W.J.H. Miller were joint owners of the "La Salle" claim. They worked it together until early in January, 1887 when Markell, who apparently had been putting up all the expenses of operating the property, telegraphed Miller to stop work on his account. The order proceeded from a misunderstanding between the tenants in common, which need not be stated. The order was disregarded in so far as it concerned the progress of the work, which Miller continued on his own account until early in July. It is unimportant to state the reasons which actuated Miller in this proceeding. The fact alone is the important element in the litigation. During the time that Miller was working the property, he incurred considerable debts, which at the last date remained unsettled. Markell was a nonresident, and when he arrived in Aspen, in July, he entered into negotiations with Miller looking to the adjustment of their controversies. By reason of some antecedent transactions between these parties Markell had become indebted to Miller to the extent of about $1,600, and Miller had brought suit to enforce his supposed rights in the property, and to recover what he claimed was due him. This is an important fact to remember when the question of ratification comes to be considered. While Miller was prosecuting his operations on the property, he mined and shipped considerable ore, which he sold to the appellees, J.F. Matthews & Co. According to the quite common usage among people who are working mines which produce, but do not yield enough to pay current expenses, he obtained from Matthews & Co. sundry advances upon ores to be mined and shipped. The advances were made under the agreement that they should be repaid by ore to be subsequently mined, if sufficient for the purpose. The arrangement seems to have been carried out in good faith between Miller and Matthews & Co., but the result was that upon the conclusion of their dealings there was due Matthews & Co. upwards of $1,800. They brought this suit against Markell to compel him to pay these advances. He defended, set up his order to stop work, and insisted that he could not be held liable for the debts which Miller had contracted during the time its operations were carried on contrary to his directions and expressed wish. It is tolerably clear that he cannot be held liable on the theory of an agency properly exercised by Miller at the time the debt was contracted. If he is to be held at all, it must be on the ground that he accepted and adopted Miller's acts. There is little difficulty to hold him on this principle. When he reached Aspen he entered into negotiations with Miller to adjust their differences. Miller's claim to an interest in the property seems to have been recognized, and Markell agreed that if he would forego his claim against him for some sixteen hundred and odd dollars, and settle upon the basis which he proposed concerning the interests which Miller was to enjoy in the La Salle and Harrisburg properties, he would pay all the debts which Miller had incurred during the time that he was working the property without Markell's consent. The indebtedness to Matthews & Co. was not the sole obligation which Miller had contracted and left undischarged, but there were sundry other claims for supplies of various sorts held against Miller and the mine by the dealers in Aspen. These supplies included groceries and materials which are essential to mining operation. It is not important to state what Miller did on the property whereby the debts accrued. There seems to be no question that it was development work, which tended to the opening up and advancement of the claim as a piece of mining property. There is another very important...