Rogoff v. Charash
| Decision Date | 27 April 1964 |
| Docket Number | No. 20406,20406 |
| Citation | 154 Colo. 503,391 P.2d 680 |
| Parties | Leon ROGOFF, Plaintiff in Error, v. Jack CHARASH and Diana Charash, sometimes known as Dina Charash, Defendants in Error. |
| Court | Colorado Supreme Court |
Barry & Boyle, Denver, for plaintiff in error.
Creamer & Creamer, Denver, for defendants in error.
We will refer to the parties by name. The action is here on writ of error to review a summary judgment by which the trial court dismissed a counterclaim filed by Rogoff and entered a judgment in favor of Jack and Diana Charash against him on said counterclaim. The case involves former litigation between the parties and we accordingly will set forth at some length the full story as follows:
In November, 1948, Jack Charash, one of the defendants in error, commenced an action against Leon Rogoff the plaintiff in error, and one Ida Wimmer, by a complaint docketed as No. A-61654 in the Denver district court. In essence, that complaint alleged that the plaintiff and defendant were brothers-in-law; that a relation of extreme trust and confidence existed between them, and that the plaintiff Charash was advised that there was for sale a piece of property commonly known as 2643-61 Welton street. Charash wished to purchase property but being inexperienced in such matters mentioned to Rogoff its existence as a desirable investment, and stated that he would give him the information upon condition of a promise that if the property was purchased it would be purchased by those parties as equal co-partners. Rogoff gave his promise, was given the information concerning the property, and conducted negotiations for purchase. Rogoff repeatedly stated that the transaction was in the process of negotiation, and that the property would be taken in the names of both the parties. In actually, Rogoff proceeded to obtain title in the names of himself and one Ida Wimmer, who knew of all of the transactions involved and who furnished none of the consideration. Immediately after the purchase of the property was ascertained by Charash, he offered to pay one-half of the purchase price to Rogoff and demanded conveyance of an undivided one-half interest. Rogoff refused that demand but did not deny the understanding of the parties and offered to convey an undivided one-third interest in the property, which Charash refused to accept.
In his complaint Charash specifically offered to pay one-half the purchase price, and demanded conveyance of an undivided one-half interest in the property. He alleged losses on rentals of the property, and also that the defendants held the property as to one-half thereof in trust for him, and prayed judgment declaring a trust and requiring conveyance of an undivided one-half interest in the property. The prayer of the complaint specifically contained the following language:
Damages also were sought.
An answer was filed to the complaint in No. A-61654. That answer admitted that the parties Charash and Rogoff were brothers-in-law; admitted the taking of the title to the property in the names of Rogoff and Wimmer; and generally denied the remaining allegations of the complaint. The defenses of the statute of frauds were raised in a second and third defense, it being alleged that the agreements involved were not in writing. No question of any kind was raised in the answer as to the bona fides of the tender by Charash of one-half the purchase price, and indeed the prayer of the complaint of Charash was conditioned upon his being required to pay into the registry of the court the necessary sum in the event of adjudication of his right to the property interest demanded. Rogoff was represented by competent counsel.
The action came on for trial in the Denver district court. During the period of the trial, and on September 23, 1953, there was negotiated between the parties Charash and Rogoff and their several counsel, and committed to writing, an Agreement of Settlement. That agreement specifically recited that 'the issues in the said action have been and are now in process of contest between the parties' and that 'the parties are particularly desirous of terminating and settling the litigation between them in the said action embodied.' It was then specifically agreed that:
The agreement was to continue in full force during the life of Diana Charash, and to be binding upon Rogoff, his heirs, representatives, and assigns. Moreover, it specifically recites that 'THE SAID DIANA CHARASH SHALL BE SPECIFICALLY CONSIDERED AN INTENDED BENEFICIARY UNDER THE TERMS OF THIS AGREEMENT.'
It was provided that Jack Charash in consideration of the agreement should immediately on execution of it by proper stipulation and agreement and order cause the pending action to be dismissed with prejudice, each party to pay his own costs. Moreover, Jack Charash specifically released all of his claim in and to the subject property. The agreement finally provided for attorneys' fees in the event of the necessity for action to collect any payment due under the terms thereof. The agreement was signed by Charash and by Rogoff, and duly notarized. The very same day, returning from recess of court granted to allow the negotiation of the agreement mentioned, there was presented to the court a written stipulation signed by the attorneys for the parties. That stipulation recited that the plaintiff Charash and defendant...
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Fladung v. City of Boulder
...question actually litigated and decided, but also as to every question which might have been presented and determined. Rogoff v. Charash, 154 Colo. 503, 391 P.2d 680. The parties being the same and the project estimates being a necessary part of the initial ordinance establishing the distri......