Page:Federal Reporter, 1st Series, Volume 5.djvu/181

 DELMONICO r. BOUDEBUSH. 169 �the agreement was, in fact, liiade during the life of that con- tract; that is to say, before the eighth day of August, 1879. And, at the time the agreement was made, Eoudebush -was in a position to enf oree a conveyance bf the property from the Den- ver party. The sum paid for the property was precisely that specified in the contract with Eoudebush ; and, as both par- ties to the agreement had received large sums of money un- der the old contracts, it is reasonable to believe that tfaey would de al with each other more favorably on account of such payments. Eoudebush, as a defendant in the suit and a wit- ness in the cause, does not claim that any new arrangemetit was made between the contracting parties, or that the sale was other and different from that specified in the contract between himself and the Denver party. During the pend- ency of the contract with the Colorado Springs party, that party had been in possession of the property, and had ascer- tained that it was of great value, and they were gratified with the failure of that contract, and anxious to purchase the adverse titles of the Denver party and the Lee and Stockbridge party. So anxious were they that they agreed to give and did give to Eoudebush one-fifth interest in the property for bis services in getting in those titles. AU the circumstances of the transaction by which the Colorado Springs party ac- quired full title to the property, lead to the conclusion that the contract with the Denver party was used to bring about that resuit. In that way the defendant Eoudebush gained an interest of one-fifth in the property, and the question for consideration is whether he shall be allowed to retain that interest as against the plaintiff, who was jointly interested with him in the contract with the Denver party. �In admitting Chaffee and Delmonico to an interest in the contracts in May, and in receiving from them the $20,000 with which to make the first payments under those contracts, it is apparent that Eoudebush beeame in some sense a trustee for them in the further execution of the contracts. Those instruments were made with him personally, and upon the face of them he alone could enforee their terras. Until th» money was paid which was fumished by Chaffee and DeU ����