Mason v. Sieglitz

• Decision Date: 16 March 1896
• Citation: 22 Colo. 320,44 P. 588
• Parties: MASON et al. v. SIEGLITZ. (MOORE et al., Interveners).
• Court: Colorado Supreme Court

44 P. 588

22 Colo. 320

MASON et al. v. SIEGLITZ. (MOORE et al., Interveners).

Supreme Court of Colorado

March 16, 1896

Appeal from district court, Arapahoe county.

Action by F. P. Sieglitz against James F. Mason and others. George F. Moore and John A. Heames intervened. From a judgment for plaintiff, defendants Mason and O'Neal and interveners appeal. Affirmed.

The plaintiff in this case was F. P. Sieglitz. The defendants were James F. Mason, Thomas S. O'Neal, and the Colorado National Bank. The complaint alleges that on the 12th of July, 1889, the plaintiff, the defendant Mason, and one C. E Moorman made a joint agreement in writing, the purport of which was that, if through their instrumentality a sale was made of the Brush-Heap mining property in New Mexico, these three parties were to share equally in the commissions of said sale. The details in effecting the sale were intrusted by the plaintiff and Moorman to Mason, and a sale was made from which the sum of $8,000 accrued to them as commissions one-third thereof to each of them. Mason, contrary to the agreement, and in violation of his duty to those jointly interested with him, directed that the said sum of $8,000 should be deposited with the defendant bank in the names of Mason and O'Neal; that about $4,000 of said amount has been paid through said bank to Mason and O'Neal; and that the sum of $4,200, at the time of filing the complaint, was due and payable to the bank, and that Mason had no authority to dispose of any portion of said commission, except that belonging to himself; and that the disposition which he did make of the interest of Moorman and plaintiff therein was with the intent to defraud the plaintiff; that O'Neal never had any interest or share in such commissions; that the plaintiff has acquired the interest of Moorman in said commission. Judgment is asked on behalf of the plaintiff for two-thirds of the commission of $8,000. The defendant bank filed its answer, admitting that it had in its possession the sum of $4,250, which subsequently, by agreement of parties was paid into court to abide the judgment in this case, and the case against it was dismissed. O'Neal and Mason filed separate answers, in most particulars denying the allegations of the complaint; Mason alleging that he makes no claim upon the fund which is held by the bank; the answer of O'Neal containing a like disclaimer as to himself, and alleging that the money in bank belongs to George F. Moore and John A. Heames as their share of commissions upon the sale of the property, which, it is claimed by both O'Neal and Mason, was made, not by the plaintiff, nor by him, Mason, and Moorman under the joint agreement which is set out in the complaint, but by O'Neal, through and with the assistance of Moore and Heames, to Moore and Heames themselves and certain other parties in the city of Detroit. Subsequently Heames and Moore filed their joint petition of intervention herein, alleging that neither is the plaintiff nor are the defendants entitled to the money which is in the bank, as commissions or otherwise; but they allege that in the months of March, 1890, they entered into an understanding with O'Neal to sell said Brush-Heap mines, and that the three did effect the sale thereof in May, 1890. The commissions upon the sale were to be divided, one-half going to O'Neal, and one-half to the interveners; that O'Neal has received his share of the commissions, and that the fund now in bank belongs to them. There was a replication filed by the plaintiff to and denying the affirmative matters in the two answers and the affirmative matters in this petition of intervention. Upon the issues thus joined, trial was had to the court with a jury, and a verdict was returned in favor of the plaintiffs against the interveners and the defendants, upon which judgment was entered. It is from this judgment that defendants Mason and O'Neal and the Interveners appeal, there being no judgment against the bank.

W. C. Kingsley, for appellants.

Stuart & Murray, for appellee.

CAMPBELL J. (after stating the facts).

It will be seen that both defendants disclaim any interest in the fund which the plaintiff seeks to recover, although, in their answers, they aver that it belongs to the interveners. The real controversy is between the plaintiff and the interveners. The issue, as tried, and as all of the parties to this controversy consider it, was: Have the defendants and the interveners, or any of them, fraudulently appropriated and converted to their own use money belonging to the plaintiff? The claim of the plaintiff is that this fund constitutes a part of the commissions earned by him, Moorman, and Mason, in carrying out their joint agreement in effecting the sale of the Brush-Heap mining property, which fund the defendants and the interveners have converted to their own use. The claim of the defendants and the interveners is that this fund is that portion of the commissions belonging to the interveners--O'Neal having received his share--which were earned by O'Neal and interveners in perfecting the sale of this same property, with which sale plaintiff had nothing to do, and in which fund he has no interest. There is some question as to the proper authentication of the bill of exceptions, and as to whether it contains all the evidence submitted to the jury; but, as no seasonable objection has been interposed by appellee, and as both he and the appellants have made copious abstracts of the record and of this bill of exceptions, and filed their briefs and argued the case as though the bill of exceptions had been properly preserved and signed, and that it contained all the evidence, we will proceed to dispose of this case upon its merits.

The record, including this bill, abounds with reasons for the affirmance of the judgment. The evidence in this case, though contradictory upon nearly every point, tended to show that an agreement in writing was executed by the plaintiff, Mason and Moorman, providing that, in case plaintiff secured control of the Brush-Heap mine for 90 days, and a sale was effected by the parties to the contract, whatever was earned as commissions should be equally divided between them. The plaintiff secured from Elliott and Forbes, the owners of the mines, an option for a certain time, and when that time expired without a sale the owners consented to an extension which continued until the mines were sold, the three parties to the contract, from the date of its execution, continuing their efforts in various ways to make the sale. Mason was intrusted with the details of the negotiations, and subsequently plaintiff purchased Moorman's rights and interests under the contract. After this joint agreement was executed, the interveners, Heames and Moore, or one of them, went to New Mexico, to examine other properties, and while there, and through the instrumentality of Mason, they met O'Neal, and through O'Neal and Mason this Brush-Heap property was brought to the attention of interveners, and negotiations for a purchase then were entered upon, which subsequently ripened into a sale to them and their associates. In making this sale, reports, assays, maps, and various other data calculated to facilitate the sale of mines, furnished and prepared by the plaintiff, and at his expense, were used by O'Neal and Mason in effecting this sale. O'Neal seemed to be the active spirit in the matter, and some time in the month of May, 1890, interveners, for themselves and associates, bought this property, and paid $160,000 therefor, of which $10,000 were for commissions to the brokers. At first the interveners intended to take this property for themselves alone, but the time given for the first payment upon the purchase price was so short they were obliged to admit into the purchasing syndicate some of their confiding friends in Detroit. O'Neal, by his own admissions, occupied a double relation in the transaction, as an assumed agent of the vendors, and an undoubted agent of Heames and Moore, who were acting for themselves, and ostensibly for their associates. In each of these capacities O'Neal demanded and received compensation for his services. From the purchasers he has received commissions amounting in value to nearly $10,000. Of the total commission of $10,000 allowed by the owners of the property to the brokers for their services, about $1,500 went for extras, the nature of all of which the evidence, for obvious reasons, does not disclose; and about $8,500 were left for the brokers, of which O'Neal has received his share, having, as he says, given as a gratuity some of it to Mason, although he protests that Mason was not of any particular value in the negotiations; and one-half is now the fund in the bank over which the present controversy is being waged, and which the interveners claim as their own. For prudential reasons the interveners did not want their associates to know that they were receiving from the vendor's commissions upon the sale of the...