Wolf v. Burke

• Decision Date: 20 February 1893
• Citation: 32 P. 427,18 Colo. 264
• Parties: WOLF v. BURKE et al.
• Court: Colorado Supreme Court

32 P. 427

18 Colo. 264

WOLF v. BURKE et al.

Supreme Court of Colorado

February 20, 1893

Error to district court, Arapahoe county.

Action by Hyman E. Wolf against Thomas J. Burke and others. Judgment for defendant Burke, the other defendants not having been served, and not appearing. Plaintiff brings error. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

By the amended complaint, Thomas J. Burke, C. A. Weed, and R. L Hopkins are made defendants, plaintiff in error alleging that on September 3, 1885, and for a long time before and after said date, these defendants were partners doing a general mining and other business under the name and style of the Coeur D'Alene Bed-Rock Flume Pool, and were engaged in the construction of a mining ditch or flume, in Idaho territory, for the purpose of mining the property purchased by them from plaintiff, as hereinafter described; that said R. L. Hopkins was the manager of said work, and had charge and control of the business of said partnership; that, on or about the date first mentioned, defendants, acting by the said Hopkins, manager, and defendant Burke in person, bought from plaintiff, and plaintiff bargained and sold to defendants, all his right, title, and interest in and to certain mining property situated in Idaho territory. It was then and there agreed that plaintiff should, by suit, obtain title of one Sanders in and to a one-sixth interest in the Lucky Gulch placer claim in Shoshone county, Idaho Ty. It is further alleged that the parties mentioned then and there agreed that defendants would pay plaintiff for all of said property $20,000, as follows: For Sanders' title, when the same should be obtained by plaintiff, $1,154.18, together with all expenses necessarily incurred by plaintiff in obtaining such title, and for title then in plaintiff; the balance, viz. $18,845.82, in payments as follows: $1,200 cash in hand, which was then and there paid, and $17,645.82 on or before the 31st day of December, 1885, or in payments as follows: $5,881.94 on or before November 2, $5,881.94 on or before December 1, 1885, and the balance on or before December 31st following. Plaintiff agreed to make a deed for his interest in said property to defendant Burke, and place the same in bank at Murray, Idaho, to be delivered to defendant Burke, or to defendants, upon their making the deferred payments as above specified. In pursuance of said agreement, plaintiff alleges that he then and there executed a deed as required by said agreement, and delivered the same to the Bank of Murray, for said defendants, or for said Burke, and on November 12, 1885, the first deferred payment being then overdue, and unpaid to plaintiff, defendants and defendant Burke represented to plaintiff that they were not prepared to make the payment in full, but would pay plaintiff $550 thereon, and for the remaining $5,331.94 they would give their note at 30 days after date, upon condition that plaintiff would extend time of all of the subsequent payments 30 days, which proposition plaintiff accepted. Thereupon said Burke gave plaintiff his check for $250, as a part of the first payment, which is all of the said $550 which was ever paid by said defendant; that said Hopkins promised plaintiff that the balance, $300, should be paid plaintiff in a few days. In pursuance of said agreement, defendants, acting by said Hopkins, manager,--he being thereunto duly authorized by said Burke, acting in person,--made and delivered to plaintiff their promissory note, as follows:

'$5,331.94. Murray, Idaho, November 12, 1885. Thirty (30) days after date we promise to pay to the order of H. E. Wolf five thousand three hundred thirty one and 94-100 dollars, at Bank of Murray, Murray, Idaho, value received, with interest before and after maturity at the rate of ----- per cent. per annum until paid. Coeur D'Alene Bed-Rock Flume Pool. R. L Hopkins, Manager.'

Thereupon such agreement for extension of time for payment of balance and receipt for amount paid, were entered into, as follows:

'Dated Sept. 3, 1885. H. E. Wolf to Thomas J. Burke: The inclosed deed will be delivered to thomas J. Burke, or order, upon the payment by said Burke or his attorney to H. E. Wolf, or to his order, at the Bank of Murray, Idaho, of the sum of $17,645.84, at any time on or before the 31st day of December, A. D. 1885, or in payments as follows, to-wit: $5,881.94 on or before November 2, 1885; $5,881.94 on or before December 1, 1885; $5,881.94 on or before the 31st day of December, A. D. 1885. Said deed to be deposited in escrow in Bank of Murray, Idaho, subject to above conditions. Witness my hand and seal this 3d day of September, 1885. H. E. Wolf. [Seal.] Witness: W. B. Hey. burn.'

'Received on account of this escrow contract, $5,881.94, being first payment due thereon, and I hereby extend the time when each subsequent payment is due thirty days from the date in said contract specified. H. E. Wolf.'

--Which said last-mentioned paper was deposited in the Bank of Murray, Idaho. It was further alleged that, in pursuance of this agreement, plaintiff brought suit against Sanders for his interest in said placer claim, and, as the result of said suit, obtained title thereto, to himself, for the benefit of said defendants, as per their agreement. Plaintiff alleges that in bringing such suit, and obtaining such title, he necessarily incurred and paid out the sum of $124.10. It is further alleged that no part of said note, and no part of the deferred payments have been made, and same are wholly unpaid and due plaintiff, together with interest thereon; that the deed from plaintiff has been, since the same was made, in the Bank of Murray, and still remains in said bank, in accordance with the agreement between plaintiff and defendants. Plaintiff demands judgment for the amount of said note and deferred payments, with interest upon the same. The defendant Burke, for answer to the amended complaint, denies generally and specifically each allegation therein contained. Upon these issues the cause was tried to a jury; the other defendants not having been served, and not appearing. The trial resulted in a verdict and judgment for the defendant in error. Plaintiff in error brings the cause to this court for review.

Teller & Orahood, for plaintiff in error.

Wolcott & Vaile, for defendant in error.

HAYT, C.J., (after stating the facts.)

The district court was of the opinion that the contract was in contravention of the statute of frauds, and void. If we are to assume that the contract is void in consequence of not being in writing, it must be so by reason of the laws of the territory of Idaho. The contract was made and is to be performed, in that territory, and the property to be affected by its terms is there situate. By well-settled principles, the validity of the contract, under these circumstances, must be determined by the laws of Idaho. It was a valid contract at common law, and no evidence was introduced to show that it was not valid under the laws of the territory of Idaho. No presumption should therefore have been...