Murley v. Ennis

• Decision Date: 01 February 1874
• Citation: 2 Colo. 300
• Parties: MURLEY v. ENNIS.
• Court: Colorado Supreme Court

2 Colo. 300

MURLEY v. ENNIS.

Supreme Court of Colorado

February, 1874

Error to Probate Court, Clear Creek County. ^[*]

THE declaration contained the common counts for goods sold and delivered; for work done and materials furnished; for money loaned; for money received by defendant for use of plaintiff for interest; for money found to be due upon an account stated. There was no count for money paid to the use of defendant. At the trial, Ennis, the present defendant in error, who was then plaintiff, gave evidence tending to prove an agreement between Murley, the plaintiff in error, one Thompson and himself, by which Murley was to prospect for lodes, and the others were to furnish provisions and other supplies to him; that, under this arrangement, Murley took possession of the St. Joe lode, which had been previously located and abandoned by other parties; that, by the terms of their agreement, each was to have one-third of all locations made by Murley; that Ennis and Thompson furnished to Murley about $200 worth of provisions under this arrangement; that Murley afterward sold and conveyed the St. Joe lode to one McAfee and received there for about $960; that Murley afterward promised to pay plaintiff one-third of the money so received from McAfee, and gave to plaintiff an order on McAfee for $310, being a portion of the said purchase-money that this order was returned to Murley with the request that he would collect the same. The plaintiff gave further evidence to show that in the year 1868, at Murley's request, he paid to one Morgan the sum of $70. The defendant gave evidence controverting that offered by the plaintiff which it is unnecessary to repeat. The court charged the jury as follows 1. If the jury believe, from the evidence, that Murley did have an accounting with Ennis, and give him an order for the amount as due on the sale of the St. Joe lode, and such order not paid, he is now estopped from denying his liability to Ennis, unless by subsequent payment.

2. This is a civil suit; therefore, the jury will be governed by the weight or preponderance of evidence in determining whether or not the defendant is indebted to the plaintiff.

3. 'If the jury believe, from the evidence, that, at the time the alleged contract for prospecting was made, Murley was in possession of St. Joe lode, and that this St. Joe lode was not included in that arrangement, they the jury should find for the defendant. But admissions of the defendant, as to any portion of the sale money belonging to the plaintiff, is good evidence to prove that the lode was included in the alleged contract.'

4. 'The court instructs the jury that a contract broken, releases the other party from its terms; and if they believe that the plaintiff and defendant did enter into some kind of a contract or arrangement of prospecting or working any mining property, and that the plaintiff did not carry out his portion of said contract, then the defendant is released from the operations of any such contract, but if afterward there was a settlement and accounting between the parties, and settlement made as to the matters relating to such contract, and the defendant acknowledged his indebtedness to the plaintiff, then the defendant is bound by such accounting and such agreement.

5. 'The court instructs the jury that a contract between the plaintiff and defendant to prospect in partnership, for mines, gives the plaintiff no right to or interest in mines previously discovered and owned by defendant, unless afterward, or at the time the contract was made, such mines were included in such contract.'

6. 'If the jury believe, from the evidence, that in the spring of 1867 the defendant and plaintiff entered into an arrangement for prospecting, and were to share in the proceeds, this gives the plaintiff no right to or interest in property subsequently found by defendant, unless he, the plaintiff, carried out his part of the agreement.'

7. 'If the jury believe, from the evidence, that the defendant is indebted to the plaintiff of money on account of sale of St. Joe lode, then the plaintiff is entitled to interest at ten per cent per annum from the date of settlement about the matter with plaintiff to the present date.'

8. 'If the jury believe, from the evidence, that Murley is indebted to Ennis for money paid to Morgan, as attorney, then Ennis is entitled to interest on the same from the time the money was paid, to this date, at ten per cent per annum.'

To the giving of which said instructions (except the 6th), by the court, and to the giving of each of them, the defendant then and there excepted.

The jury found for the plaintiff, and judgment was given on the verdict.

Mr. HUGH BUTLER, for plaintiff in error.

Messrs. POST & COULTER, for defendant in error.

WELLS J.

We are of opinion that the supposed accounting and promise to pay referred to in the first instruction, which was given amounted to no more than an admission of liability, and was entitled to only such consideration as the jury might see fit to accord to it in view of the other testimony. If, in truth, Ennis had no interest in the proceeds of the lode in question, then the alleged promise was without consideration and void, but by this instruction the jury are required to give it conclusive effect; the fourth asserts substantially the same proposition. The eighth authorizes the jury to allow, in the computation of plaintiff's damages,...