Morey v. Lett

• Decision Date: 20 December 1892
• Citation: 18 Colo. 128,31 P. 857
• Parties: MOREY v. LETT et al.
• Court: Colorado Supreme Court

31 P. 857

18 Colo. 128

MOREY v. LETT et al.

Supreme Court of Colorado

December 20, 1892

Error to district court, Arapahoe county.

Action by Franklin Morey against William H. Lett, intervener, and William Harvey. After a trial of the main issue, (see 31 P 719,) the issues upon the intervention were tried, resulting in a judgment for intervener. Plaintiff brings error.

Teller & Orahood and C. M Kendall, for plaintiff in error.

Rogers & McCord, Sullivan & May, and Fowler &amp Doud, for defendants in error.

HAYT C.J.

This is the sequel to the case of Morey v. Harvey, 31 P. 719, (recently decided in this court.) In that case Morey recovered in the court below a judgment for $1,500, as a commission for the sale of real estate. This judgment was reversed in this court, at the instance of Morey, in whose favor the judgment was rendered. The present case was commenced in the court below by a petition of intervention filed in the suit of Morey v. Harvey. In the petition the contract between Morey and Harvey for the sale of certain real estate is set forth, and it is alleged that there was then due upon said contract, as a commission, the sum of $5,000. The petitioner further avers that he was a partner of Morey in the transaction, and that he aided in procuring the sale of the property in question; that this was done at the instance of both Harvey and Morey; and that he was promised, for his services in this behalf, one half of any commission that might be earned. In the court below the main issue was first tried. Afterwards the issues upon the intervention were tried, resulting in a judgment for the intervener for one half of the amount awarded to Morey. To reverse this latter judgment, Morey brings the case here by appeal.

It is claimed that intervener has no such interest in the matter in litigation as entitles him to intervene in this action; that at most, he is a mere creditor of Morey. Let us see if this is true. The petition alleges, and the evidence tends to show, that Morey first placed the property in the hands of Lett, he intervener, for sale, and that, when Morey was brought into the transaction, an agreement was made between Morey and Lett by the terms of which they were to act together, and divide any commission that might be earned. The terms of this agreement were communicated to Harvey, the owner of the property, by Morey, and the arrangement seems to have been satisfactory to all the parties concerned. The privity between Lett and Harvey in the contract is fully established. In fact, Morey, and not Harvey, is the party who now seeks to be released from such agreement. Our Civil Code provides that 'any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both. * * *' Code 1887, § 22. Here the intervener alleges, and the district court has found, that he is equally interested with the plaintiff in the cause of action set up in the original complaint...