Treat v. Schmidt

• Decision Date: 07 June 1920
• Docket Number: 9669.
• Citation: 193 P. 666,69 Colo. 190
• Parties: TREAT v. SCHMIDT et al.
• Court: Colorado Supreme Court

193 P. 666

69 Colo. 190

TREAT v. SCHMIDT et al.

No. 9669.

Supreme Court of Colorado

June 7, 1920

Error to District Court, Las Animas County; A. C. McChesney, Judge.

Suit by C. P. Treat against H. A. Schmidt and the Vandalia Coal Company. To review judgment for defendants, plaintiff brings error.

Reversed with directions.

D. J. Davies, of Denver, for plaintiff in error.

A. E McGlashan, of Trinidad, and W. B. Morgan, of Denver, for defendants in error.

TELLER J.

The plaintiff in error, by suit, sought to have canceled a deed by which he conveyed to the defendant in error Schmidt certain lands in Las Animas county and for an accounting as to coal produced therefrom. The defendants had judgment, and the case is now before us for review.

The complaint alleged that the conveyance was invalid: First because it was induced by misrepresentation and fraud; and second, because the land was conveyed to defendant Schmidt when he was plaintiff's agent to sell it.

In February, 1914, Schmidt, a resident of Trinidad, wrote plaintiff, then residing in New York, in relation to the assessment of plaintiff's lands, stating, among other things, that the assessor had 'recognized the fact at last that section 31 is mined out,' that being the land involved in this action, and he further stated that he was a partner of a former agent of plaintiff. On May 1, 1914, Schmidt inquired what plaintiff's price was on 'the land that had been mined out,' stating that he had an inquiry as to plaintiff's price. He also said that the inquirer would pay only the price usually paid for grazing land--i. e., from $3 to $5 per acre. There was further correspondence between the parties concerning the title and assessment of said lands, and mention was several times made by Schmidt of inquiries as to the sale of this and other lands owned by plaintiff. Under date of April 4, 1916, Schmidt wrote plaintiff a letter concerning title to the land here involved, and containing the following:

'This land you mentioned that was heretofore leased to the Colorado Fuel & Iron Company, and which has the coal mined out, is not worth very much, and never will be worth much, as it is no good for agriculture, and about all the value it has is for pasture for goats.

'I know a party that would purchase it if you would sell it cheap, but I do not think you can get over $300 for this quarter section.'

A few days later he wrote again, saying that he had a prospective buyer, and that plaintiff should act promptly, lest the buyer change his mind before the sale was completed.

On April 20, 1916, he again wrote that he had a buyer; and on May 6, 1916, he requested plaintiff to excute and return inclosed deeds, with draft for $400, which he promised to take up. He said, 'I have put myself as grantee to expedite matters.'

The deeds were executed and delivered, and the money paid. A short time thereafter Schmidt conveyed the land to the other defendant in error, a corporation organized by him, and of which defendant Schmidt, his wife, and one Garcia constituted the board of directors when the conveyance was made. A lessee of said company took from said land from 20,000 to 22,000 tons of coal. Schmidt denies that the deed was obtained by fraud, and that he was the agent of plaintiff for the sale of the land.

We are of the opinion that the evidence does not establish a fraudulent intent on the part of defendant Schmidt. We cannot, however, agree with the trial court that he was not the plaintiff's agent to sell the land when he took title to it. We are not bound by the court's finding on that question, because the relation of the parties, on the undisputed evidence, is a question of law. The correspondence in evidence establishes the agency. Schmidt undertook to sell plaintiff's land at an agreed price, and that establishes his agency.

In Fisher v. Seymour, 23 Colo. 542, 550, 49 P. 30, 33, after holding as above stated, this court said:

'The law requires the utmost good faith on the part of an agent when dealing with his principal, and it is well settled that an agent, to sell, can not purchase the property for himself, unless he makes known to his principal

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