Moffat v. Williams

• Decision Date: 14 May 1894
• Parties: MOFFAT v. WILLIAMS.
• Court: Colorado Court of Appeals

36 P. 914

5 Colo.App. 184

MOFFAT v. WILLIAMS.

Court of Appeals of Colorado

May 14, 1894

Error to district court, Arapahoe county.

Action by David H. Moffat, executor of the last will and testament of Jerome B. Chaffee, deceased, against Joseph Williams, to compel defendant to release his interest in property pledged. There was a judgment for defendant, and plaintiff brings error. Affirmed.

L.C Rockwell, for plaintiff in error.

Oscar Reuter and Felker & Dayton, for defendant in error.

THOMSON J.

The following facts appear from the pleadings: Previous to the month of March, 1884, Joseph Williams was engaged in building the Uncompahgre canal, under a written contract theretofore made between himself and the Uncompahgre Canal Company and others. This contract had been assigned to one Charles S Abbott, to enable him to do the work in his own name; but Abbott had no interest in the contract, and the work done by him was for Williams. In the month of March 1884, the owners of the canal having failed in their payments to Williams, he applied to Jerome B. Chaffee, who was surety on his bond for the performance by him of the requirements of the contract, for a loan of sufficient money to enable him to complete the work. An agreement resulted, by which Williams caused an assignment of the contract to be made by Abbott to Chaffee, as security for advances to be made by the latter to Williams; and, between the month of March and the 30th of July, Chaffee, from time to time, advanced money to Williams amounting in the aggregate to a considerable sum. The canal having been completed, and the money due for building it being unpaid, proper steps were taken to secure the debt by a mechanic's lien upon the property, and in January, 1885, an action was commenced in the district court of Montrose county, in the joint names of Williams and Chaffee, for the enforcement of the lien. In March, 1886, Mr. Chaffee died. Letters testamentary were issued to David H. Moffat, as executor of his will, and the action was continued in the name of Moffat as executor. Such proceedings were subsequently had in the cause that in the month of June, 1890, the plaintiffs in the action recovered judgment for $25,697.25, and obtained a decree enforcing their lien for that amount. On July 13, 1891, the judgment being unpaid, the property against which the lien was decreed was duly sold upon execution by the sheriff of Montrose county, and was bid in by Williams, in his own name and that of Moffat, for $26,781.75,--the amount of the judgment, interest, and costs. Thereupon the sheriff executed and delivered to the purchasers a certificate of purchase of the property as required by law. On February 16, 1892, Mr. Moffat sold the certificate to one Frank C. Goudy for $26,781.75, the exact amount bid at the sheriff's sale, and executed, individually and as executor, a written assignment of his interest in the certificate, agreeing also to procure from Williams an assignment of his interest, and to save Goudy harmless against any claim of Williams in case the latter should refuse to execute the assignment. This action was brought by Moffat, as executor of the estate of Chaffee, to compel an assignment to Goudy of Williams' interest in the certificate.

The amount received from Goudy was less than the face value of the certificate by the interest which had accrued from the 13th of July to the 16th of February. The debt from Williams to Chaffee was not payable within any fixed or definite time, and there was no agreement between them as to the manner of enforcement of the pledge. The sale to Goudy was private. It does not appear that any demand was ever made upon Williams to redeem, or that any notice was given to him of the time and place of sale. The amounts alleged to have been advanced by Chaffee for the completion of the canal, and by Chaffee and Moffat, as his executor, in the prosecution of the suit on the mechanic's lien, are in dispute, as are several other matters relating to the respective rights of the parties in the fund represented by the certificate. The only witness at the hearing was Mr. Goudy, who was produced by the plaintiff. He testified to some matters without objection, and an offer to prove some other matters by him was rejected. There being no other evidence offered, the court gave judgment dismissing the cause; and this judgment, together with the rejection of Goudy's testimony, is assigned for error.

The matters to which Goudy testified, and those to which he was not permitted to testify, were equally unimportant. The case is controlled by the facts which appear from the pleadings. The assignment of the contract to Chaffee, to secure advances to be made by him to Williams, was a pledge of the contract and it is to the law governing pledges that we must...