Shrewsbury v. Reynolds-Morse Corp.

• Decision Date: 18 September 1939
• Docket Number: 14389.
• Citation: 94 P.2d 686,105 Colo. 30
• Parties: SHREWSBURY v. REYNOLDS-MORSE CORPORATION.
• Court: Colorado Supreme Court

94 P.2d 686

105 Colo. 30

SHREWSBURY v. REYNOLDS-MORSE CORPORATION.

No. 14389.

Supreme Court of Colorado

September 18, 1939

Rehearing Denied Oct. 9, 1939.

In Department.

Error to District Court, Gunnison County; George W. Bruce, Judge.

Action by the Reynolds-Morse Corporation, as lessor, against one Smith, receiver for the American Metals Corporation, lessee to quiet title to certain mining properties. Joseph Shrewsbury, receiver, was substituted for Smith at the trial. Judgment for plaintiff and defendant brings error.

Affirmed.

George A. Chase and Warren K. Young, both of Denver, for plaintiff in error.

Carl J Sigfrid, of Ouray, for defendant in error.

BAKKE, Justice.

Defendant in error, The Reynolds-Morse Corporation, as lessor, brought this action against the American Metals Corporation (Smith receiver) as lessee, to quiet title to certain mining properties in Gunnison county. The present receiver Shrewsbury, was substituted for Smith at the trial. Lessor's right to maintain the action was contingent upon whether the provisions of the lease had been violated subjecting it to forfeiture after the giving of due notice. The trial court, sitting without a jury, after a lengthy hearing, sustained the position of the lessor, declared the lease forfeited and quieted the title in lessor. To review that judgment the receiver prosecutes this writ of error.

No good purpose would be served by setting out the lease in full because, in view of our conclusions, it is only necessary to consider two of its provisions.

The principal grounds relied upon for reversal, and the only alleged errors of the twenty assigned which we think it necessary to consider, are: 1. No legal notice of forfeiture was ever served on the receiver. 2. The trial court was without jurisdiction. 3. No provision in the lease had been violated.

1. As to notice of forfeiture, complaint is made that there was no compliance with the provision in the lease relating to such notice. That provision was as follows: 'Provided, however, that if this lease is forfeited upon the election of the lessor by reason of failure of the lessee to perform the covenants or conditions, thereof, said lessor shall give the lessee thirty (30) days notice by registered mail (return receipt requested), addressed to the lessee at such address as may be furnished by it from time to time, notifying the lessee of such failure to perform and upon failure of the lessee within sixty (60) days thereafter to remedy such failure, then the rights under said lease shall thereupon cease * * *.' There is no complaint that the notice, as such, was insufficient in any way; the contention being that it was addressed to 'George R. Smith, Ohio City, Gunnison county, Colorado,' and not to George R. Smith, Receiver.' The mailed notice was never delivered to Smith, and was returned by the postmaster, endorsed: 'Uncalled for. Not here. They were notified.' The evidence disclosed that Smith as receiver, and supposedly the manager of the property, had been in Ohio City. His mother lived there and operated a boarding house. An uncle also lived in Ohio City. The notice was mailed October 31, 1934, and was not returned until December 25, 1934. November 23, 1935, Smith left for parts unknown. It is not surprising that the trial court remarked, 'I can't help but conclude that, for some reason, Mr. Smith didn't want to get the notice, or didn't get it.' If George R. Smith would not receive his mail, there is no reason to suppose that the addition of the word 'Receiver' following his name on the envelope containing it would have caused him to accept it. Finally, there is nothing in the record to indicate that the lessee informed the lessor of his whereabouts 'from time to time' or furnished any address. Under the circumstances here, the giving of the notice ceased to be a question of law and became one of fact, which the court resolved in favor of the lessor. Mineral Farm Min. Co. v. Barrick, 33 Colo. 410, 80 P. 1055.

2. As to the jurisdiction of the trial court, lessee's contention is that since an involuntary petition in bankruptcy was filed against it in the Federal Court in Denver, February 24, 1934, the jurisdiction of that court became exclusive. There are two answers to that proposition First, the...