Union P. Ry. Co. v. Kennedy

• Decision Date: 15 February 1889
• Citation: Union P. Ry. Co. v. Kennedy, 20 P. 696, 12 Colo. 235 (Colo. 1889)
• Parties: UNION PAC. RY. CO. et al. v. KENNEDY.
• Court: Colorado Supreme Court

20 P. 696

12 Colo. 235

UNION PAC. RY. CO. et al. v. KENNEDY.

Supreme Court of Colorado

February 15, 1889

Commissioners' decision. Appeal from district court, Arapahoe county.

The plaintiff, John Kennedy, and one McMonagle were claimants of a certain stone quarry, which had been opened upon government land situate in the county of Larimer. They put the defendant Brown into possession, and procured him to file upon said land in the United States land-office a pre-emption claim for their use and benefit. They paid all expenses attending such filing, and were to furnish the money to pay for the land when entered, and the title was to come to them. Brown was their employe. This filing was done in December, 1880. Shortly afterwards the plaintiff purchased the interest of McMonagle, and on the 3d day of March, 1881, entered into a written agreement with Brown, which is as follows:

'This agreement, made this third day of March, A. D. 1881, by and between John Kennedy, of Denver, Colorado, and Andrew Brown of Larimer county, Colorado, witnesseth: That whereas, the said Andrew Brown has heretofore filed upon, and is now in possession of, the following described land: South-east quarter of north-east quarter, and east half of south-east quarter, south-west quarter of south-east quarter of section seven, township six, of range sixty-nine west, and has opened and is operating a stone quarry upon said land; and whereas the said Andrew Brown did file upon, remain in possession of said land, and has run and operated said stone quarry for the use and benefit of said John Kennedy, in consideration of certain compensation or wages being paid him, the same being fully paid: Now, it is hereby agreed by and between the parties hereunto that from the date of this agreement said Brown shall operate said quarry to the best of his ability and to the advantage of both parties. That he will quarry and ship stone to John Kennedy, at Denver city, Colorado, or to whatever place said John Kennedy shall designate, and that all stone taken from said quarry shall be consigned to John Kennedy. And the said John Kennedy agrees to receive, sell and dispose of all stone received from said Brown; to sell the same to the best advantage, profit, and price to be had. And the parties hereto agree to keep a strict and true account of all expenses resulting from the quarrying, shipping, and sale of stone, and account to each other for the same every thirty days from this date; the said Brown to have complete control of working and operating the quarry, and said Kennedy have complete control of the sale and disposal of all stone and collections due on account of such sales. Said Brown further agrees to pay the sum of $523.75--being one-half the cost of the said quarry--to John Kennedy, and thereafter to be a one-half owner in said quarry and business. Each of said parties hereby agrees that neither of them will contract any debt or debts on account of or against them jointly, without the consent of the other. All or any debt or account contracted by either party hereto, other than actual expense of the business, shall be an individual matter, and the other party shall not be liable for the payment of the same. It is hereby expressly agreed and understood by the between the parties hereto that said John Kennedy shall not be held responsible or liable for any debt or account made or contracted by said Andrew Brown, and that said Andrew Brown shall not be held liable or responsible for debts or accounts made ay said John Kennedy. It is further agreed that, should either of the parties wish to withdraw from this agreement, he shall allow the party the privilege of buying his interest, and that neither shall offer for sale his interest to certain parties without the consent of the other.

'In witness whereof the parties hereunto have hereunto set their hands and seals this day and year first above written.

JOHN KENNEDY. [Seal.]

'JOHN BROWN. [Seal.]

'Witness: EPH. LOVE.'

Brown and Kennedy operated the quarry under this agreement until the 3d day of May, 1881, at which time a dispute arose between them; and Borwn thereafter refused to recognized the agreement as binding, and operated the quarry on his own account, and to the exclusion of Kennedy. In December, 1881, Kennedy brought this action against Brown in the district court of Larimer county, from whence it was removed to the district court of Arapahoe county. The plaintiff declared upon this agreement as a copartnership agreement, alleged certain breaches thereof, and prayed for a dissolution of the partnership and for an accounting, etc. Brown answered, admitting the execution of the agreement, but denying the partnership and the breaches, etc.; claiming that no partnership was created by or under the said agreement, and averring that he filed on the land for his own exclusive use, and that he had changed such filing to one of homestead on the 3d of May, 1881. Kennedy subsequently filed a supplemental complaint, alleging that the appellants, the Greeley, Salt Lake & Pacific Railroad Company and the Union Pacific Railway Company, were in possession of the land and quarry under a lease from Brown, and asking that they be made parties defendant to the action, which was done. Issues were joined and proofs taken, and upon a hearing had a decree was rendered in favor of the plaintiff against all three of the defendants. From this decree the two defendant companies have appealed to this court, Brown not joining in the appeal.

Teller & Orahood, for appellants.

Patterson & Thomas and A. W. Brazee, for appellee.

DE FRANCE, C., ( after stating the facts as above.)

The decree appealed from is, substantially, but a personal money judgment against the defendants for the sum of $1,500 and costs. No personal liability of the appellants, or either of them, to the plaintiff is disclosed by the pleadings or the evidence, and for this reason the decree, in so far as the same is a personal judgment against the appellants for the payment of money, is erroneous.

The pre-emption law of the United States, under which Brown made his filing, prohibits the entry of land by one person for the benefit of another, and the agreement to the effect between these parties was therefore illegal. The appellants assail the written agreement, which forms the basis of this action, as one based upon, or connected with, the previous illegal agreement, and as so tainted therewith as to render the latter invalid. The written agreement recognizes the existence of the illegal agreement, and makes no provision for a discontinuance thereof. On the contrary, it provides that Brown shall pay Kennedy the sum of $523.75 for a one-half ownership in the 'quarry and business.'

In his petition for a receiver, filed in this case, Kennedy alleges that the land filed upon by Brown and containing the said stone quarry 'is of little or no value, except for the purpose of operating and working said quarries thereon.'

The following questions and answers appear in the testimony given by Kennedy in this case: ' Question. State the circumstances under which the articles of agreement set out in the complaint was drawn, and where it...