Payne v. Williams

• Decision Date: 02 October 1916
• Docket Number: 8647.
• Parties: PAYNE v. WILLIAMS.
• Court: Colorado Supreme Court

160 P. 196

62 Colo. 86

PAYNE v. WILLIAMS.

No. 8647.

Supreme Court of Colorado

October 2, 1916

Error to District Court, Denver County; John W. Sheafor, Judge.

Action by E. D. Payne against Fanny L. Williams. Judgment for defendant, and plaintiff brings error. Affirmed.

Zimmerhackel & Avery, of Denver, for plaintiff in error.

Frazer Arnold and John A. Ewing, both of Denver, for defendant in error.

SCOTT J.

This is an action for debt upon an alleged verbal contract for moneys advanced by the plaintiff in error, plaintiff below, to defendant in error, defendant below, used in partial payment for a residence property in the city of Denver, now owned by defendant.

The substance of the complaint is: That the plaintiff on the 21st day of June, 1910, entered into a contract to purchase from the owner the premises involved, for the sum of $3,350, in payments as follows: $600 upon the execution of the contract $500 on or before September 21, 1910; $750 on or before July 21, 1911; and the remainder to be paid by the assumption of a mortgage in the sum of $1,500. That the plaintiff paid the sum of $600 at the time of the execution of the contract and the sum of $500 on the 21st day of September, 1910, as agreed. That thereafter and on the 9th day of November, 1910 the plaintiff and defendant entered into a contract whereby the plaintiff agreed to and did transfer his interest in said premises, to the defendant, and whereby the defendant agreed in consideration thereof to pay the plaintiff a sum equal to the amount theretofore paid by him on account of said purchase price, and further agreed to pay the remainder of the purchase price of said premises as provided in his said original contract with the owner, and that the defendant further agreed that in the event that she should fail to so pay such balance, and the plaintiff thereby be compelled to pay the same, the defendant would repay to the plaintiff the sums which the plaintiff should so pay, and that defendant further agreed to repay to the plaintiff any sums which he might be compelled to pay as interest on the $1,500 mortgage debt. That on May 5, 1911, at the request of the defendant and in order to prevent a forfeiture of the original contract, the plaintiff paid $450 on account of the purchase price of said property, and on the same day paid $45 as interest on the $1,500 due under the mortgage. That on August 5, 1911, the said property, pursuant to the said contract of purchase and the payments made thereunder, was conveyed to the defendant, who ever since has been and is now the owner thereof. That the defendant has not repaid to the plaintiff any of the sums so paid by him.

The prayer was for judgment for $1,659.70, and for a vendor's lien to secure the payment thereof.

The answer admits that the defendant is the owner of the property, and pleads a general denial to every other allegation in the complaint. The cause was tried to court and jury, and verdict and judgment rendered in favor of defendant.

The contention of the defendant was that the moneys advanced by the plaintiff, and all that he did in the premises, was as a gift to her, and that at no time was there any agreement upon her part or of any other person to repay to the plaintiff the sums of money so advanced, or any part of them.

The assignments of error are: (1) That the court erred in permitting the defendant, under her general denial, to show that the payments made by the plaintiff were by way of gift (2) that the court erred in refusing an instruction to the jury to the effect that the burden was upon the defendant to establish by a preponderance of the evidence that the moneys advanced by the plaintiff were a gift.

The undisputed facts are, in substance, that at the time of the contract between plaintiff and the owner, the plaintiff, and for a long time thereafter, was a roomer at the residence of the defendant and her husband. The family consisted of the defendant, her husband, a daughter of marriageable age, and another child. The plaintiff was very friendly with defendant and her husband; had proposed marriage to the daughter. This proposal was not accepted, but plaintiff appears to have continued his suit for the hand of the daughter in marriage. The Williams family were poor, without a home of their own the husband earning $60 per month, and the daughter working as a stenographer, employed by the plaintiff at the time of the contract by plaintiff to purchase. The plaintiff proposed the purchase of a dwelling for use of defendant and her family. He in company with defendant and her husband inspected two properties, and afterward the one involved, which seemed to be satisfactory to all. The defendant and her family moved in this property and the plaintiff moved with them, still retaining a room.

Prior to August 25, 1910, the plaintiff executed what is termed an informal agreement by which he purported to transfer his interest in the contract to the daughter.

The plaintiff was unable to meet the final payment of $750, and thereafter, by the apparent consent of all parties, the old contract between plaintiff and the owner was canceled, and an agreement between the owner of the premises and the defendant entered into, whereby the defendant agreed to pay the sum of $850 in monthly payments of $25; the additional $100 being in consideration of a waiver of forfeiture of the old agreement. The defendant made such payments for several months, and on May 5, 1911, the plaintiff paid the owner of the property the sum of $450, to be applied on the contract of defendant. This left a balance due of $100, which defendant finally paid on August 5, 1911, and received a...