Underhill v. Whitney, 12511.

• Decision Date: 04 May 1931
• Docket Number: 12511.
• Parties: UNDERHILL et al. v. WHITNEY.
• Court: Colorado Supreme Court

299 P. 12

88 Colo. 608

UNDERHILL et al. v. WHITNEY.

No. 12511.

Supreme Court of Colorado

May 4, 1931

In Department.

Error to District Court, El Paso County; Ralph E. Finnicum, Judge.

Suit by Vincent Whitney, as trustee, against Clarence Underhill and another, in which defendants filed a cross-complaint. Judgment for plaintiff, and defendants bring error.

Affirmed.

R. L Chambers and C. W. Dolph, both of Colorado Springs, for plaintiffs in error.

L. H Snyder, of Colorado Springs, for defendant in error.

MOORE J.

Vincent Whitney, as trustee, had judgment for $6,309.55 in the district court of El Paso county against Clarence Underhill and Ernest Marsh, who here seek a reversal thereof claiming that the plaintiff had no capacity to sue.

The Cross S. Cattle Company, an Arizona corporation and others on August 1, 1919, executed and delivered a trust deed to Henry Carstens, trustee, to secure a bond issue of $350,000. The property thereby conveyed consisted of real estate in Arizona and cattle, horses, and mules. This deed contained the usual provision authorizing the appointment of a successor to the trustee upon his death, refusal or inability to act; power of appointment being given to Carstens & Earles, Incorporated. On May 16, 1921, L. L. Hillman was appointed to succeed Henry Carstens as trustee. On August 6, 1922, Hillman was duly succeeded by G. Austin Haskell.

Upon default in the payment of interest on its bonds, a foreclosure suit was instituted by Haskell against the grantors in said deed of trust. With consent of the defendants, a decree of foreclosure was entered and sheriff's sale had thereunder to Haskell, trustee, on July 10, 1924; whereupon Haskell took possession of said property and conducted the Cross S. Cattle Company's business as a going concern. On March 5, 1925, as such trustee, Haskell sold to defendants, pursuant to the terms of a written contract, 700 steers and 500 heifers, delivered to defendant 283 steers and 179 heifers, and failed to deliver the balance called for in the contract. Defendants, contending that Haskell had breached his contract, having theretofore paid $4,000 on account, refused to pay $4,716.45, the balance of purchase price of said cattle, and on August 17, 1926, Haskell, as trustee, commenced an action against defendants to recover this amount. Defendants answered and cross-complained for damages for breach of contract. This case was subsequently dismissed without prejudice; Haskell resigned, and Whitney, his successor as trustee, appointed by Carstens & Earles under the authority of the deed of trust, filed his complaint herein alleging the facts herein recited and praying judgment for balance due. The defendants in their answer admitted the purchase of said cattle, but denied that plaintiff's predecessor, Haskell, was then acting as trustee for the bondholders. They also filed a cross-complaint wherein they alleged that 'on March 5, 1925, the said G. Austin Haskell, in his individual capacity and under the name of G. Austin Haskell, Trustee, was the owner of 700 steers and 500 heifers that he formerly purchased on July 10, 1924, from the sheriff of Gila county, Arizona, at the foreclosure sale of the Cross. S. Cattle Company. That on March 5, 1925, defendants purchased from G. Austin Haskell under the name of G. Austin Haskell, Trustee 700 steers at five and one-half cents per pound, and 500 heifers at four cents per pound.'

Upon a trial to the court, the plaintiff, having introduced evidence supporting the allegations of his complaint, rested; the defendants demurred to the evidence 'for the reason that the same does not show the capacity of the plaintiff to sue defendants as trustee,' and further moved for a nonsuit based upon insufficient evidence. The court overruled said demurrer and motion, and the defendants, electing to stand thereon, failed to introduce any evidence in support of their answer or cross-complaint; whereupon the court...