Waterbury v. Fisher

• Decision Date: 10 December 1894
• Parties: WATERBURY et al. v. FISHER. [1]
• Court: Colorado Court of Appeals

38 P. 846

5 Colo.App. 362

WATERBURY et al. v. FISHER. ^[1]

Court of Appeals of Colorado

December 10, 1894

Appeal from district court, Arapahoe county.

Action by Lyle C. Waterbury and others against Miers Fisher. From a decree for partition, plaintiffs appeal, and defendant filed cross errors. Affirmed.

On the 5th day of March, 1881, the defendant Fisher, and one E.J. Loper purchased of Vincent D. Markham lots 25 to 32 (both inclusive), in block 22, in Case and Ebert's addition to the city of Denver, for $5,600. The lots were subject to an incumbrance of $1,740, which was assumed by the purchasers, deducted from the $5,600, leaving $3,860, which was paid in cash, of which amount Loper paid $409.20 and Fisher $3,450.80. The conveyance was made to Fisher. On the date of the purchase the defendant executed and delivered to Loper the following memorandum in writing "$409.20. Denver, Colo., March 5, 1881. Received of E.J Loper four hundred and nine and 20/100 dollars, and invested the same in lots 25, 26, 27, 28, 29, 30, 31, and 32, in block 22, in Case & Ebert's addition, taking deed in my name for same. Above amount, together with one-half of profits of sales of lots, to be paid said Loper at the time of sale, less expense of same. Miers Fisher." On the 17th day of June, 1882, Loper traded to Knight Bros. & Waterbury his interest in the transaction for a piano, and transferred to such firm the memorandum received by him from Fisher, as above, by the following indorsement upon the back of the instrument: "As consideration for and in payment for a piano this day sold to Meribah M. Loper by Knight Brothers & Waterbury, I hereby transfer, assign, sell, bargain, and convey unto said Knight Brothers & Waterbury all my interest in the within agreement and the property therein described. The said Knight Brothers & Waterbury, however, are to pay either to me, my heirs, assigns, or legal representatives, a sum equal to one-half of whatever they may receive or realize, for or on account of the said agreement on the property herein described, in excess of $409.20; they to use their best endeavors to realize as much as possible for or on account of the said agreement and the property therein mentioned. E.J. Loper. [Seal.] Denver, Colo., June 17, 1882." At some subsequent time, not stated, Knight Bros. & Waterbury transferred the written instruments, for the alleged consideration of $800, to the plaintiffs (appellants). The land remaining unsold, and, as alleged in the complaint, Fisher having refused to sell for amounts offered, plaintiffs brought this suit.

The first complaint filed was in the nature of a bill for specific performance, claiming the return of the $409.20 paid by Loper, and one-half the profits, based upon the value as estimated at the time, over and above the expenses paid. A demurrer was filed and sustained. On April 20, 1891, plaintiffs filed a second or amended complaint, containing the following allegations, among others, as follows: "Wherefore the plaintiffs allege that the plaintiffs and the said defendant, Miers Fisher, now hold said real estate as tenants in common, the said plaintiffs being entitled to eighteen one-hundredths (18/100) thereof, and the said defendant to seventy-two one-hundredths (72/100) thereof, and said plaintiffs being also entitled to one-half of the profits that may be derived from the sale of said real estate. The plaintiffs further allege that, within a year prior to the bringing of this suit, they requested said Miers Fisher to sell the said real estate, and to pay to them their interest therein, together with their share of the profits realized on the sale of said real estate; and they further allege, on information and belief, that the said real estate is now worth in the market twenty thousand ($20,000) dollars, and that the said Miers Fisher has had frequent opportunities to sell, and can now sell, the said real estate for the market value thereof, and derive a large profit therefrom, which should be divided between the said plaintiffs and Miers Fisher. That the plaintiffs desire a division of said real estate, and their share of the profits thereof, but that the said defendant, Miers Fisher, now wholly unmindful of the plaintiffs' rights herein, refuses to make a division of the said real estate, and refuses to sell the same or permit the same to be sold, and refuses to comply in any manner with the terms of his contract made with the said E.J. Loper, as aforesaid,"--and asked relief as follows: "Wherefore plaintiffs pray that the parts or shares justly belonging to the plaintiffs and the defendant, Miers Fisher, hereinabove named, in and to the above-described real estate, may be settled and ascertained by and under the direction of this court; and that a fair division and partition thereof may be made between the plaintiffs and the defendant, Miers Fisher; and that the proper commissioners may be appointed to make the division and partition of the said premises between the said plaintiffs and the defendant, Miers Fisher; and that the plaintiffs may have paid to them such an amount as they may be entitled to, as shall equal one-half of the profits derived, or that may be derived, from the sale of said real estate, or, in case of partition and division of said property cannot be made without material injury to the rights of the plaintiffs and the defendant, then a sale of said premises may be decreed, and that the said property be sold under the direction of this court, and that the proceeds of the sale may be divided between the said plaintiffs and the said defendant, Miers Fisher, according to their several rights and interests therein." On the 9th of May, 1892, the defendant elected not to stand by his demurrer, but to make answer. Admitted the purchase of the property as stated in the complaint, but stated the consideration to have been $5,600, instead of $4,000, as alleged in the complaint. Admitted the receipt from Loper of $409.20, which was applied to the purchase and the interest of Loper to that extent in the property. Alleged that, by the terms of the agreement between Loper and himself, Loper "was at once upon the purchase *** to assume the management; *** should devote his best and most diligent efforts to procuring, and should procure, a purchaser; *** and cause said real estate to be sold at a profit within a reasonable time, and during the spring and summer of 1881." Admitted that if such contract had been carried out by Loper he was to receive from the proceeds of such sale the $409.20 by him contributed, and one-half of the profits of the transaction as alleged in the complaint. Alleged that Loper never assumed the management nor made an effort to sell. Admitted the making of the memorandum of March 5, 1881. Further alleged the payment by himself of the incumbrance of $1,740, and interest; also the payment of taxes at different times, amounting in the aggregate to near $1,100. For a second defense defendant pleaded the statute of frauds; for a third, the statute of limitations of six years in money demands; fourth, the statute of limitations of five years for "bills of relief" in cases of trust not cognizable by the courts of common law. A trial was had to the court; a decree for partition made; commissioners appointed; the property divided, setting off a certain portion to the plaintiffs; the report of the commissioners approved by the court; a final decree entered, by which the court refused to decree to the plaintiffs an order of sale of the remaining property and a division of the profits. An appeal was taken to this court, the refusal of the court to order the sale, and divide such profits as might be realized, being assigned for error. The defendant filed cross errors nine in number: (1) That the court erred in refusing to strike the amended complaint from the files, because it, as alleged, stated a different cause of action from that stated in the original complaint. (2) In overruling defendant's demurrer to the amended complaint, on the ground that the facts stated did not constitute a cause of action. (3) In finding that the plaintiffs owned an interest in fee in the property. (4) In effect same as third, finding the parties to be tenants in common. The fifth and sixth need not be noticed, as they only embrace, in a different form, matter contained in the others. (7) That the court erred in decreeing a partition. The eighth and ninth are general in regard to the finding and decree.

Doud & Fowler, for plaintiffs.

Oscar Reuter, for defendant.

REED J. (after stating the facts).

Appellants prosecute this appeal, alleging as error the failure of the court to decree a greater or further interest in the property or proceeds. The assignment is as follows: "The court erred in not requiring the appellee to sell said real estate and to pay to the appellants a proportion of the profits derived from the sale of said real estate;" and "the court erred in not decreeing that the appellee should account for one-half of the profits on the real estate mentioned in said decree." No other errors are claimed or urged in argument. By the decision upon the demurrer to the original complaint, it was held that the suit could not be maintained, and the relief asked (a decree of sale and an accounting) granted, and plaintiffs were required to so amend the prayer for relief as to ask for partition. ...