Spencer v. Brundage

Decision Date10 January 1921
Docket Number9957.
Citation194 P. 1104,69 Colo. 520
PartiesSPENCER et al. v. BRUNDAGE.
CourtColorado Supreme Court

Department 3.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Action by Clara E. Brundage against Stella Spencer and another. Judgment for plaintiff, and defendants bring error and apply for supersedeas.

Affirmed.

H. E Luthe, of Denver, for plaintiffs in error.

Rush &amp Cline, of Denver, for defendant in error.

ALLEN J.

This is an action to recover the sum of $1,000 alleged to have been paid by plaintiff to a real estate broker for the use and benefit of the defendants, and received by them, as a part of the purchase money for a rooming house. A trial was had to a jury, and at the close of all of the evidence the court directed a verdict for the plaintiff. Judgment on the verdict was entered. Defendants bring error, and the cause is before us upon their application for a supersedeas.

The direction of the verdict in favor of the plaintiff is assigned as error. Admitted or undisputed facts, relevant to the propriety of a directed verdict, appear in the record as follows:

The defendants were the owners of the furniture and business of a rooming house, known as the Luna Hotel, in the city of Denver. They informed one G. M. Walker, whom they describe in their testimony as a 'curb broker' and 'business chance man,' that they would sell their rooming house if they could get '$12,000 net' to themselves. Walker then sought to interest the plaintiff in the purchase of the defendants' rooming house. Thereafter, and on February 21, 1920, Walker and the plaintiff signed an instrument in writing which, in part, reads as follows:

'Recd. of Clara E. Brundage $1,000 as a part payment on the furniture and furnishings in the rooms * * * known as the Luna Hotel, subject to the following conditions that the purchase price is to be $12,500.00 to be paid as follows: $7,000 is to be paid in cash on or before March 1, 1920, when a good and clear title is to be given to the said furniture and furnishings and possession of the premises in which the same are contained and also the lease that is now on the premises is to be transferred to the said Clara E. Brundage with the consent of the owner of said premises. * * *'

The plaintiff, Mrs. Brundage, at this time gave Walker a check for $1,000.

It appears that on the same day, February 21, 1920, Walker informed the defendants that he had found a purchaser for them. In his testimony he says:

'I submitted Mrs. Brundage's offer to them, and they said they would carry it through; they said there was no question about the transfer of the old lease.'

Stella Spencer, one of the defendants, called as an adverse witness for cross-examination, gave the following testimony:

Q. How did you know what you were going to get for the place? A. I had told Mr. Walker $12,000 net.

Q. When you inventoried it, you didn't know what you were going to get for your property? A. Certainly, because by that time he (Walker) had got the deposit on it, and it was to be $12,500. * * *

Q. What did he tell you? A. He told me how the payments were to be made.

The record shows that the defendants were willing to sell the rooming house upon the terms agreed upon in the writing between Walker and the plaintiff, so far as concerns amount and time of payments and the assignment of the lease. When asked if Walker said anything about the lease, the witness Spencer, one of the defendants, answered: 'We naturally supposed the lease was to be assigned.' Further testimony along this line by her is as follows:

Q. Did you know that in your lease you had an agreement that unless you got the written consent of the owner you couldn't assign it? A. Certainly.

Q. And you were, of course, intending to get the written consent of the owner? A. Yes, sir.

Walker informed the defendants that he had...

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7 cases
  • Johnson v. National Sugar Mfg. Co.
    • United States
    • Colorado Supreme Court
    • March 30, 1931
    ... ... which he is bound to pay over.' See also: Mumford v ... Wright, 12 Colo.App. 214, 219, 55 P. 744; Spencer v ... Brundage, 69 Colo. 520, 523, 194 P. 1104 ... So far ... as we are advised, it is a universal rule of law that, when ... one has ... ...
  • Monday v. ROBERT J. ANDERSON, PC
    • United States
    • Colorado Court of Appeals
    • May 22, 2003
    ...received whenever the defendant "has received money which, in equity and good conscience, he ought to pay over." Spencer v. Brundage, 69 Colo. 520, 523, 194 P. 1104, 1105 (1921)(quoting Zang Brewing Co. v. Bernheim, 7 Colo.App. 528, 529, 44 P. 380, 381 (1896)). For example, a person who rec......
  • Aaberg v. H. A. Harman Co.
    • United States
    • Colorado Supreme Court
    • December 12, 1960
    ...had and received will lie. Springhetti v. Hahnewald, supra; Johnson v. National Sugar Mfg. Co., 88 Colo. 404, 297 P. 995; Spencer v. Brundage, 69 Colo. 520, 194 P. 1104; Ph. Zang Brewing Co. v. Bernheim, 7 Colo.App. 528, 44 P. 380, 2 R.C.L., pp. 778, 780, 782, In the Wheeler case the plaint......
  • Wheeler v. Wilkin
    • United States
    • Colorado Supreme Court
    • June 8, 1936
    ... ... [58 P.2d 1225] ... lie. Springhetti v. Hahnewald, supra; Johnson v. National ... Sugar Mfg. Co., 88 Colo. 404, 297 P. 995; Spencer v ... Brundage, 69 Colo. 520, 194 P. 1104; Ph. Zang ... Brewing Co. v. Bernheim, 7 Colo.App. 528, 44 P. 380; 2 ... R.C.L. pp. 778, 780, 782, 788 ... ...
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