Mogenson v. Zubler

• Decision Date: 05 February 1906
• Citation: Mogenson v. Zubler, 84 P. 981, 36 Colo. 235 (Colo. 1906)
• Parties: MOGENSON v. ZUBLER.
• Court: Colorado Supreme Court

84 P. 981

36 Colo. 235

MOGENSON v. ZUBLER.

Supreme Court of Colorado

February 5, 1906

Appeal from District Court, San Miguel County; Theron Stevens Judge.

Suit by Mattie J. Zubler against Frank P. Mogenson.From a judgment in favor of plaintiff, defendant appeals.Affirmed.

R. H Wilson and C. E. Reed, for appellant.

Hogg &amp Watson, for appellee.

GUNTER J.

Action for an accounting; referee to take evidence and report findings of fact; a report in favor of plaintiff(appellee) its approval and judgment for plaintiff in accordance therewith; from which judgment is this appeal.

The disposition of the appeal depends upon whether certain note credits claimed by defendant(appellant) in the accounting were properly rejected.These contested credits consisted of three notes, two each in the sum of $600, and a third in the sum of $1,091.Plaintiff and defendant were at one time husband and wife.Plaintiff instituted an action for divorce.In consideration of a property settlement, the terms of which were embodied in a written contract, of date July 15th, the action was dismissed.By this settlement plaintiff became an owner with defendant in certain mining property.This property was thereafter operated by defendant upon the joint account of plaintiff and himself.When this property had been so operated about one year, defendant instituted an action for divorce against plaintiff and obtained a decree of absolute divorce.This decree adjusted all property rights between plaintiff and defendant by confirming them as the parties by agreement had fixed them in the above contract of July 15th.Immediately after the rendition of the decree plaintiff instituted the present proceeding against defendant for an accounting of the operation of the mine on this joint account.The three notes above mentioned defendant claimed should be allowed him as credits in the accounting on operation of the mine on joint account.By the contract of July 15th defendant expressly agreed to pay the two $600 notes out of his individual assets.As to the $1,091 note, this had been given before plaintiff acquired any interest in the mine, and before the beginning of the operation of the mine.While the note was signed by both the plaintiff and the defendant, the proceeds were used on the individual account of the defendant.Further, it was secured on the individual property of the defendant.Apparently plaintiff, with reference to defendant, was but a surety on the note; certain it is there was no implied authority for defendant to charge payment of this note to the operating expenses of the mine.It is claimed, however, by defendant, that shortly after he began the operation of the mine on joint account, discovering the opposition of the plaintiff to the payment of the three notes out of the proceeds of the operation of the mine, he refused to run the mine further, unless plaintiff consented to...