Pollard v. Sayre

• Decision Date: 06 April 1908
• Citation: 45 Colo. 195,98 P. 816
• Parties: POLLARD v. SAYRE et al.
• Court: Colorado Supreme Court

98 P. 816

45 Colo. 195

POLLARD v. SAYRE et al.

Supreme Court of Colorado

April 6, 1908

Rehearing Denied Dec. 14, 1908.

Appeal from District Court, City and County of Denver; Samuel L Carpenter, Judge.

Action by Loraine M. Pollard, administratrix, against Hal Sayre and others, to recover commissions for a sale of property and to establish a lien therefor. From a judgment of dismissal plaintiff appealed. Affirmed.

Morrison & De Soto, for appellant.

H. M Orahood John P. Heisler, and G. I. Chittenden, for appellees.

MAXWELL J.

Appellant (plaintiff below) sues as the administratrix of Charles W Pollard, deceased. November 23, 1899, appellees Sayre and Cocks (née Queen), the owners of two mining claims in Gilpin county, executed and delivered to Pollard a mining lease in writing for the term of three years from date, which contained the usual covenants, and also an option to Pollard to purchase the property at the sum of $20,000 if paid within the third year of the life of the lease. The same date appellees executed a mining deed conveying to Pollard the mining claims described in the lease. The same date the mining deed was deposited in escrow in the Rocky Mountain National Bank, with the following letter of instructions to the bank, signed by appellees Sayre and Cocks: 'To The Rocky Mountain National Bank, Central City, Colorado: Herewith inclosed find deed from the undersigned Charles W. Pollard, conveying the Hampton and Rainbow lodes, in Russell mining district, Gilpin county, Colorado. This deed is to be held by you in escrow subject to delivery to said Pollard, his heirs or assigns, upon their complying with the conditions of a lease of said property, executed by us to said Pollard, 1st Dec., 1899, copy of which is enclosed herewith. Upon payment of any sum as therein provided, one-half thereof is to be placed to the credit of each of the undersigned. Denver, Colo., November 23, 1899.' The same date the following letter signed by appellees was addressed to the bank, and presumably inclosed with the other escrow papers, as the letter so states, although there is no direct evidence upon this point: 'To the Rocky Mountain National Bank, Central City, Colorado: In the matter of the escrow of the Hampton and Rainbow lodes lease and deed herewith enclosed. In case of consummation of sale under terms contained in said papers, you are hereby authorized to receive from said C. W. Pollard, his heirs or assigns, a sum of $2,500 less than that designated in the agreement of purchase, as payment in full, and are hereby authorized to deliver the deed upon such reduced payment. The balance to be deposited, one-half to the credit of each of the undersigned. Denver, Colorado.' June 12, 1900, Pollard, by indorsement in writing on the back of the lease and option to purchase, assigned the same to appellee Chittenden in the following words: 'For and in consideration of the sum of one hundred dollars to me in hand paid by William H. Chittenden, the receipt whereof is hereby acknowledged and the further sum of two hundred dollars to be paid to me, my executors, administrators or assigns, within three months from the date hereof, and the further sum of two hundred dollars to be paid to me, my executors, administrators or assigns, within six months from the date hereof, and the further sum of five hundred dollars to be paid to me, my executors, administrators or assigns within nine months from the date hereof, I hereby sell, assign, transfer and convey to said Chittenden the within bond and lease and all my right title and interest therein, and all my right, title and interest in and to the real estate therein described. All deferred payments to be deposited in the Rocky Mountain National Bank of Central City, to the credit of Charles W. Pollard. It is hereby agreed that no personal liability shall attach to said Chittenden for any of said deferred payments and that it shall be optional with him whether he shall make the same or any of them, but if any of said sums are not paid, then all rights acquired by said Chittenden by virtue hereof in and to the within bond and lease and in and to the real estate therein described shall become forfeited and all payments theretofore made by said Chittenden shall be likewise forfeited to me and the above assignment and conveyance become null and void. In witness whereof I have hereunto set my hand and seal this twelfth day of June, 1900. Charles W. Pollard. [Seal.] Witness: Mrs. C. W. Pollard. B. Benima.' June 19, 1900, the lease and option to purchase, with the assignment indorsed thereon, were filed for record in the clerk and recorder's office of Gilpin county. June 12, 1900, Pollard also signed, acknowledged, and delivered to Chittenden a warranty deed conveying to Chittenden 'all the following described real estate situated in the Russell mining district, in the county of Gilpin and state of Colorado, to wit: The Hampton Lode Mining Claim, United States Mineral Survey Number 581, and the Rainbow Lode Mining Claim, United States Mineral Survey Number 770'--being the property covered by the lease and option to purchase and the mining deed from appellees Sayre and Cocks to Pollard. December 13, 1902, a short verbal extension of the option to purchase having been granted, Chittenden deposited in the bank $17,500 to the credit...