De Walt v. Hartzell

• Decision Date: 14 November 1884
• Citation: 4 P. 1201,7 Colo. 601
• Parties: DE WALT v. HARTZELL and another.
• Court: Colorado Supreme Court

4 P. 1201

7 Colo. 601

DE WALT v. HARTZELL and another.

Supreme Court of Colorado

November 14, 1884

Appeal from district court of Custer county.

J. F. Frueauff, for appellant, ex parte.

STONE J.

The appellant, De Walt, and the appellees, the two Hartzell brothers, were together owners of one-half of the capital stock of a certain mining company. The mine operated by the company was situate near Silver Cliff, in Custer county. Appellant was the treasurer of the said mining company, and was engaged in the banking business at Leadville. The appellees were bankers at Silver Cliff. An arrangement was made between appellant and appellees, that, for business convenience in paying the expenses of working the mine, the manager of the mining company should draw orders upon appellant, payable at Silver Cliff; that appellees should pay such orders at their bank in Silver Cliff, and should then transmit the same to appellant at Leadville, who, as the treasurer of the said company, should remit the amounts of such orders to the appellees.

Suit was brought in the court below by appellees to recover from appellant the sum of $2,563.84, advanced and paid out under the arrangement above stated for labor, tools, and other expenses in working the mine. Appellant, in his answer pleaded, inter alia, the statute of frauds, for that the alleged agreement of appellant to repay as averred was to pay the debt of another, viz., the said mining company, and was not in writing, signed, etc. To this plea the replication denied that it was the debt of another. The court refused to instruct the jury, as prayed by appellant, that if they believed that the indebtedness paid by appellees was the indebtedness of the mining company, and not that of appellant, and that the promise of the appellant to pay the same was not in writing, they should find for said appellant, and the refusal to give such instruction is assigned for error. There was no error in refusing this instruction. It was inapplicable to the case made by the evidence, and calculated to mislead the jury. The indebtedness shown was that of appellant as treasurer of the mining company, and as between him and appellees, who were acting as his agents in making the advances for him, it was the same as his individual indebtedness. The agreement was between mutually interested parties. As treasurer, appellant was liable for the sums he had authorized the manager to draw upon him for and promised to pay. The advances by appellees were made at appellant's request and for his accommodation. Considering the relation of the parties to the mining company and to each other, it cannot be said that the promise of appellant was to pay the debt of a third party. It amounted simply to an agreement for the transfer to appellees by appellant of certain funds in his hands in settlement of advances...