Schick v. Pritchard, 12374.

• Citation: 89 Colo. 132,299 P. 1061
• Decision Date: 25 May 1931
• Docket Number: 12374.
• Parties: SCHICK v. PRITCHARD et ux.
• Court: Supreme Court of Colorado

299 P. 1061

89 Colo. 132

SCHICK v. PRITCHARD et ux.

No. 12374.

Supreme Court of Colorado

May 25, 1931

In Department.

Error to District Court, Weld County; Claude C. Coffin, Judge.

Action by Fred J. Schick against R. W. Pritchard and Nettie Pearl Pritchard. Judgment for defendants, and plaintiff brings error.

Affirmed as to defendant last named, and otherwise reversed and remanded, with directions.

G. H. Bradfield, of Greeley, and John Harbottle, of Orange, Cal., for plaintiff in error.

Robert E. Winbourn, of Greeley, for defendants in error.

BUTLER J.

Fred J Schick sued R. W. Pritchard and his wife, Nettie Pearl Pritchard, to recover a judgment against Pritchard for $1,000 and interest, and to subject certain land to the payment of the judgment. To reverse a judgment for the Pritchards Schick brings the case here.

Counsel for Schick say that the case 'rests primarily upon the preponderance of the evidence,' and conclude that the preponderance of the evidence entitles Schick to a judgment. Counsel for the Pritchards says that: 'The only question that confronts this court is whether it shall disturb the findings of fact and judgment based thereon.' They correctly state the question submitted by the record.

The trial court is the judge, not only of the credibility of the witnesses and of the weight of the evidence, but of the inferences properly deducible from the facts and circumstances proven at the trial. On review, the record is viewed in the light most favorable to the party successful in the trial court, and every inference fairly deducible from the evidence is drawn in favor of the judgment. Roberts v Dietz (Colo.) 298 P. 1062, just decided.

Bearing these principles in mind, let up look at the evidence, most of which is undisputed.

Pritchard, who owned a farm, contracted to sell it to one Walso for $10,000. The contract provided that it should not be assigned 'without the approval of R. W. Pritchard.' Walso paid $500 in cash, the balance to be paid later. Thereafter Walso had an opportunity to sell to one Kaiser for $12,500, but Pritchard would not consent to an assignment of the contract. It was orally agreed that the Walso contract should be terminated; that Pritchard should sell to Kaiser for $12,500, $3,000 to be paid at once; that, when Kaiser made the cash payment of $3,000, it was to be divided equally between Pritchard and Walso; and that each should pay one-half ($250) of the commission earned by the real estate agent who negotiated the sale to Kaiser. This agreement, with some modification, was carried out. Instead of paying $3,000 of the purchase price at once, Kaiser was permitted to pay $1,000 cash, $2,000 to be paid in sixty days. On January 1, 1921, he was to pay $2,000, evidence by his promissory note, and was to pay $1,000 each year thereafter until the full payment of the balance. On October 2, 1919, when the deal between Pritchard and Kaiser was made, Pritchard orally agreed with Walso that the cash payment of $1,000 should be divided equally with Walso. Walso accordingly received $500, which reimbursed him for his cash payment previously made to Pritchard. It was further agreed that, as Pritchard was in need of money, he should retain the entire $2,000 that was due in sixty days. In due time that money was paid to, and was retained by, Pritchard. The Kaiser note for $2,000, due January 1, 1921, together with the other deferred payment notes, all payable to the order of Pritchard, were in escrow in the Weld County Savings Bank. On that $2,000 note the following direction to the bank was written and was signed by Pritchard, pursuant to agreement with Walso: 'When this note is paid, deliver $1,000 thereof, with interest on $1,000 thereof, to Ole Walso. R. W. Pritchard.' On January 1, 1921, Kaiser paid to Pritchard $141 interest on the $2,000 note due that day and also $152.50 of the principal. On March 19, 1921, he paid to Pritchard $203.50 of the principal. All of this money was retained by Pritchard. On January 28, 1921, Walso, being indebted to McArthur and Schick, assigned to them his interest in the $2,000 note as security for his indebtedness to them. This assignment was indorsed on the note. Later McArthur assigned his interest to Schick. As Kaiser was unable to carry out his contract with Pritchard, he and Pritchard canceled the contract, and the balance due on the $2,000 note that matured on January 1, 1921, was never paid. Pritchard thereafter conveyed the farm to his wife. Schick demanded of Pritchard the payment of $1,000, and, upon the latter's refusing to pay, brought this action. There is no dispute concerning the foregoing facts.

The controversy concerns the terms of the agreement made orally by Pritchard and Walso, under which the former was permitted to retain the entire amount of the second payment made by Kaiser; namely, $2,000. That under the original agreement Walso was entitled to one-half of that $2,000 is admitted.

Schick's counsel contend that the transaction whereby Pritchard was permitted to retain the $2,000 was, in effect, a loan of $1,000 by Walso to Pritchard, to be repaid on January 1, 1921, and that Pritchard's direction, written on the $2,000 note, 'When this note is paid, deliver $1,000 thereof, with interest on $1,000 thereof, to Ole Walso,' was intended merely as security for Pritchard's debt to Walso. There is evidence tending to support this contention. Upon the other hand, there is evidence tending to support the contention of counsel for the Pritchards; namely, that the transaction was an assignment of only an undivided one-half interest in the note, and that Walso took such interest in the note in lieu of all demands against Pritchard.

As it is our duty to do, we will take those parts of the evidence most favorable to the Pritchards. Pritchard testified that he never tried to borrow money from Walso that it was agreed that 'Walso was to wait for his money the same as I was to wait for mine out of that $2,000 when it was paid'; that the agreement was that, when the $2,000 was paid, Walso 'got his $1,000, and I was to get mine'; that Pritchard refused to give Walso his note, and told Walso that 'he would have to wait for his money the same as me'; and that Walso's money...