Tabor v. Clark

• Decision Date: 07 November 1890
• Parties: TABOR et al. v. CLARK.
• Court: Colorado Supreme Court

25 P. 181

15 Colo. 434

TABOR et al. v. CLARK.

Supreme Court of Colorado

November 7, 1890

Appeal from district court, Arapahoe county.

In 1886, Tabor brought suit against Clark and others, alleging in his complaint that Clark, being the owner of the premises therein described, entered into a written contract for the sale thereof to certain parties, which contract was afterwards, with the knowledge and consent of Clark, duly assigned to the Denver Circle Real Estate Company; that this contract was of great value to the company; that plaintiff was a stockholder in said company; that two of the remaining co-defendant's, viz., Henry and Loveland, acting as directors of the corporation, fraudulently, without any consideration whatever, and for their own personal advancement, canceled and annulled the written contract between Clark and the corporation; that Clark had full notice and knowledge of the fraudulent conduct of said Henry and Loveland, and colluded with them in connection therewith that, after such attempted cancellation of the contract Henry and Loveland as individuals immediately purchased from Clark the land in question, executing to him their promissory notes for upwards of $60,000, the balance of the purchase money, and, to secure the same, gave a trust-deed upon the property; and that Loveland and Henry had defaulted in the payment of the notes thus given, and Clark was proceeding to advertise and sell the land in pursuance of the trust-deed. Plaintiff demanded that the sale to Loveland and Henry be set aside; that their trust-deed to Clark be canceled; and that the original contract with the corporation be restored, and given full force and effect. Plaintiff also sought to procure a temporary injunction restraining Clark, pending the trial from negotiating the notes of Henry and Loveland, and from further proceeding with his sale of the property under the trust-deed; the trustees named in the deed being also made parties defendant to the suit. The temporary injunction asked for was granted, upon the filing of a bond conditioned according to law. A motion was made to dissolve, but was not separately considered or passed upon. The injunction remained in force until the final determination of the suit, when, the judgment on the merits being in favor of defendants, a dissolution necessarily took place. The present suit was instituted by Clark against Tabor and his surety, to recover damages upon the injunction bond thus given. The only damages claimed, or sought to be proved, were attorney's fees. The evidence offered covered these fees for the entire litigation, and the court charged the jury that, if they found for the plaintiff, they might allow as damages this total amount. A verdict was rendered for $1,250. From...