Young v. Thomson

• Citation: 14 Colo.App. 294,59 P. 1030
• Parties: YOUNG v. THOMSON.
• Decision Date: 08 January 1900
• Court: Court of Appeals of Colorado

59 P. 1030

14 Colo.App. 294

YOUNG v. THOMSON.

Court of Appeals of Colorado

January 8, 1900

Error to district court, Arapahoe county.

Action by Harvey Young against Charles I. Thomson for damages for breach of contract. From a judgment in favor of defendant plaintiff brings error. Affirmed.

H.B. Johnson, for plaintiff in error.

S.D Walling and W.S. Decker, for defendant in error.

BISSELL P.J.

Of all the cases cited to the point of the invalidity of contracts because against good morals and public policy, none appear to have been more fully impregnated with the destructive virus than this transaction. It wholly concerned the interest and title which A.W. Rucker was asserting against J.B. Wheeler. According to the plaintiff's testimony, the negotiations were begun by Rucker, and carried to a conclusion by whomsoever acted entirely in his behalf. It would be impossible to either state or argue the case without a consideration of his relations to it, and the part he took in it. The subject of the barter was what Young had to sell, and what Rucker wanted to buy. Whatever may have been Judge Thomson's connection with the affair,--whether we accept Young's contention that he was his attorney, or the more probable theory that he was Rucker's representative at that time, as it is conceded he became later,--he acted only in a representative capacity. He was an attorney, and acted as such.

In July, 1888, the title to a particular one-sixth interest in the Aspen mine, in Pitkin county, stood in the name of J.B Wheeler. This interest had theretofore been conveyed to him by Young for a large money consideration. The conditions at the time of this transfer were peculiar, and have great significance as applied to the present suit. Young either had an absolute title when he conveyed, or a contingent one, which ripened into a fee. Either in or prior to November, 1884, Young, then holding this title, bonded it to Rucker by a contract apparently maturing on the 19th of that month. Disregarding this contract, or on the assumption of Rucker's failure to perform, Young deeded to Wheeler. It is conceded, or at all events it is not disputed, that Wheeler took a good title, unless he bought with notice and knowledge of the outstanding bond, and the obligee had legally tendered performance. This the obligee always insisted on, and for years had been hunting for evidence to enable him to successfully prosecute a suit against Wheeler and compel him to convey this interest and account for its product. The mine had proven to be of great value. Enormous quantities of valuable ore had been taken out of it, and the original judgment in the suit against Wheeler amounted to several hundred thousand dollars. This evidence was still lacking in July, 1888, when the contract set up as the subject-matter of this suit was entered into. The term "contract" is used advisedly, because the answer concedes that a contract was made. The dispute only concerns its terms and the parties to it. We are unable to state what the contract was, except as its conditions can be extracted from Young's testimony. As alleged, it was denied. As stated in the answer, it was denied by Young in his testimony. No other evidence was given. At the conclusion of the testimony the defendant moved for a nonsuit, which was granted, and therefrom this error is prosecuted. We shall state the case as thus made, as we understand it, with the inferences and conclusions which we conceive can be legitimately drawn from it. Rucker apparently thought Young, who had been Wheeler's partner, as well as grantor, must have some knowledge or possess some documents which would avail to support his contention that Wheeler was not an innocent purchaser. He had approached Young time and again, and attempted to extract this information. Young had many letters from Wheeler. He believed two of them would be useful and valuable. From time to time he mysteriously hinted at their contents. They were in the possession of several lawyers, and possibly others were given some knowledge of their purpose. Just before the making of the alleged contract he had a talk at the Windsor Hotel, in Denver, with Rucker, and agreed to take the letters to Aspen, and turn them over to Judge Thomson, who should show them to Rucker. His testimony about this interview is not wholly consistent, nor do his statements on direct and cross examination agree. I conclude that he either fully stated the contents, or stated enough of them to enable the prospective plaintiff to judge them to be valuable. Young wanted to sell, and Rucker was willing to buy. Young did not trust the buyer with them prior to contract, but insisted on acting through Judge Thomson, who had been, and possibly then was, his attorney in some pending matters. He agreed to give him the letters, and that he might, as the attorney of both, submit them to the purchaser's examination. I regard this as vital and important. Young was vendor, and Rucker was vendee. Judge Thomson was an attorney, and as such, and such only, the representative of one or both of them. He was neither buyer nor seller, and was without interest in the transaction, save as to whatever employment or fee might come to him from the purchaser. It must be borne in mind that suit had not then been brought. The essential proof had not been secured. This was to be obtained by and through these letters and Young. Young then either mailed the letters to Aspen, or took them to Judge Thomson, and they were submitted for examination. A bargain was made. Young contends that Judge Thomson promised to pay him, as the consideration for the agreement, one-half of the fee which he might receive. This was shown to be $25,000, and he sues him for one-half of it. The answer admits a contract, but avers that it was made by Judge Thomson on Rucker's behalf, and as his attorney, and to have been for one-quarter of what the plaintiff should recover or receive on execution or settlement to be paid by him. I shall make no attempt to decide this question, either from the testimony, or on the basis of probability, or on the legitimate inferences which may be drawn from the evidence. Even if I should conclude, which I do not, that Judge Thomson contracted, I seriously question whether there was any legal consideration to support the agreement. The whole theory of the plaintiff's case, which is that of a personal contract by Judge Thomson, is, to my mind, completely overcome by the circumstances attendant on the transaction, its antecedents, and the subsequent events. But, in my view, I need not decide the point. The case properly and legitimately turns on the terms of the agreement, construed in the sunlight of the situation. These terms I shall now state, and support my view by copious citations from the testimony, preceding it by a summary of the situation which has been foreshadowed, follow it by a narrative of what was done by Young after he made his contract, and then apply the law.

The situation when the contract was made: It must always be borne in mind that I do not state what may be taken as absolute facts established by evidence on full hearing. Neither Thomson nor Rucker testified. I take Young's evidence and narrate what it shows. Rucker had been negotiating with Young in his search for proof on the pivotal question of notice. He had not brought suit, though it had long been in contemplation. Young had letters which he was astute enough to appreciate were wanted. Why he waited, does not transpire. Whether he was taking bids from both sides will probably never be known, whatever we may believe about it. The talk at the Windsor resulted in some sort of a convention between Young and Rucker. This is a fair inference; else, why was the agreement then made that the letters should be turned over to Judge Thomson, and shown to Rucker? This was agreed to. It was done. The contract was the natural and necessary sequence. I therefore conclude that there was a preliminary contingent arrangement, which was consummated by the exhibit of the letters, their surrender, and a promise of an interest in the recovery. I am quite indifferent as to the amount which was to be paid, and equally so as to the individual who was to pay it, though my conviction is broad and firm that the beneficiary was the obligor. The letters seemed to furnish the missing link indispensable to the forging of the complete chain. There was another proposition equally essential to Rucker's success. In this, as in the other, Young was an important factor. Not only must Rucker show that Wheeler knew of his equities, but he must prove a tender of the sum nominated in his bond, within the time limited. This, as we gather, was to be established by one Judkins, who appears to have been jointly interested in the deal. On this point Young must have been an important factor. If Judkins could alone testify to it, and Young should deny it, the suit would be in danger. We have referred to this at this juncture simply to show the significance and importance of the relation which Young sustained to the impending litigation. It explains, elucidates, and interprets the conditions, terms, and character of the contract. I shall later, when commenting on his subsequent conduct, elaborate this consideration. Now, what did Young agree to do? What were the actual and what were the necessarily implied conditions of his agreement? The terms, as I learn them, are gathered partly from Young's direct testimony, his language and statements, and partly are the result of legitimate inferences from what he said and what he did not say. At the outset, I desire to suggest that I was wholly unable to gather from the abstract the material necessary to a determination of this case. The difficulty...