O'Toole v. Dolan

HAYNES, C.

This is an action to determine conflicting claims of plaintiff O’Toole and defendant Dolan to the sum of seven hundred and fifty dollars placed in the hands of defendant McAllister by Parker and Shimer to abide the determination of the controversy. The cause was tried by the court, and findings and judgment were for defendant Dolan, and plaintiff appeals from the judgment and from an order denying a new trial.

Parker and Shimer were the owners of certain mines, and on June 9, 1897, entered into a contract in writing with Dolan, by which they agreed that if Dolan should pay or cause to be paid to them one thousand dollars on or before July 9th, they would execute a bond for the sale of the mine for the price of ten thousand dollars, four thousand five hundred dollars to be paid in six months, and four thousand five hundred dollars in one year from the date of the bond. Besides this written agree

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ment, Parker and Shinier orally agreed to pay Dolan fifteen hundred dollars in case a sale for said sum should be effected for them. On June 18th Dolan assigned said written agreement to the plaintiff, who within the time limited assigned the same to another party, who paid O’Toole five hundred dollars bonus or commission, and paid to Parker and Shimer said one thousand dollars within the time limited, and afterward completed the purchase. Afterward Parker and Shimer, upon the payment to them of one-half the purchase money, paid Dolan seven hundred and fifty dollars, being one-half of the promised compensation for effecting a sale. Six months afterward, the remainder of the purchase money having been paid, Parker and Shimer offered to pay the remaining seven hundred and fifty dollars, which is the subject of this action, and as Dolan and O’Toole each claimed the money it was deposited with Mr. McAllister as above stated.

1. Appellant contends that the main and most material issue raised by the pleadings and tried by the court, via., “whether or not it was agreed between O’Toole and Dolan that the fifteen hundred dollars commission should be equally divided between them,” was not found upon by the court. The court found “that said Dolan never assigned his said agreement with Parker and Shimer for the payment to him of said sum of fifteen hundred dollars aforesaid, or any part thereof, to said plaintiff, or to any other person.”