Baird v. Howison

• Decision Date: 14 November 1907
• Citation: 45 So. 668,154 Ala. 359
• Parties: BAIRD v. HOWISON ET AL.
• Court: Alabama Supreme Court

45 So. 668

154 Ala. 359

BAIRD v. HOWISON ET AL.

Supreme Court of Alabama

November 14, 1907

Rehearing Denied Feb. 6, 1908.

Appeal from Chancery Court, Jefferson County; Alfred H. Benners Chancellor.

Bill by William Baird against Allen P. Howison and others to enforce trusts. From a decree for respondents, complainant appeals. Affirmed.

Baird filed his bill against Allen P. Howison, E. J. Smyer, W. W Lavender, F. M. Jackson, and the Braehead Coal Company for the enforcement of trusts, etc. The bill avers the following facts substantially: That Baird was an experienced coal miner, and that he and Howison entered into an agreement to locate and open a coal mine, upon the condition that Baird should prospect for and locate the mine, and that Howison should contribute the money necessary to open and develop the mine, and that they should have a one-half interest each in the mine in its entirety, when opened and located, after Howison had been paid the money expended by him in opening it, etc., with 8 per cent. interest; that in November, 1899 Baird leased from the University 400 acres of land, the description of which is particularly set out; that said lease of land was executed and delivered to Baird by the proper authorities of the University; that immediately after the execution of the lease Baird and Howison began to open and develop the coal mine on said land, which appellant superintended until about the 1st of March, 1900, when he was compelled to quit the superintendence of said mine and leave it by the said Howison or through his procurement; that in the opening and development of said mine a commissary was included, and also about 70 dwelling houses built on the land for the use of the miners and to be leased to them, from the profits of which and the rentals Baird was to have one-half that about the 4th day of December, 1900, Howison procured Baird to assign to him the lease of said mine, and when said assignment was made Howison caused to be delivered to Baird a letter, of date December 2, 1900, in which letter Howison declared a trust in favor of Baird in and to a one-half interest in and to said mine upon the condition that is set out and expressed in said letter; that Baird, in the month of November, 1900, borrowed from said Howison the sum of $200, for which he executed promissory notes, and that this was all the money Howison ever let appellant have on his personal or private account; that the assignment of the lease of said mine was dated December 15, 1899, when in fact it was actually executed about December 4, 1900; that the recitals in said transfer of said lease are untrue, and that neither the $100 nor any other consideration was paid or received by Baird for the execution of said assignment: that it had been agreed and understood by and between said Howison and Baird while the mine was being opened and developed, that when it was fully opened and developed it should be incorporated, and that Baird and Howison should each have one-half of the capital stock, to be issued and paid for by the said mine upon the incorporation of it; that about March 19, 1901, Howison organized a corporation under the name of the Braehead Coal Company, with a paid-up capital stock of 400 shares, of the par value of $100 per share, which was paid for by transferring said mine to said corporation; that included in the sale was the commissary store and the houses used by the miners; that Baird ratified the sale of said mine to said corporation, together with its equipments, stores, and houses, and elected to hold Howison as trustee in his behalf for 200 shares of the capital stock of said mine and corporation; that after the organization of said corporation, and the purchase by it of the mine, etc., Baird informed its board of directors that he was the beneficial owner of 200 shares of capital stock, and demanded that said stock be transferred to him by the proper officers of said corporation and so entered upon its books, and that the officers refused on demand to transfer him said shares of stock; and that Baird stood ready to pay said Howison whatever amount, if any, was due him for money loaned to Baird personally and for money advanced to open and develop the mine, and such other sums as were or might be chargeable as a lien on the 200 shares of capital stock. The prayer was appropriate to the averments contained in the bill. Baird afterwards amended the complaint by striking out Smyer, Lavender, and Jackson, and by making certain immaterial changes in date. He afterwards amended by setting out the contract between him and Howison specifically, the substance of which is given above, and amended the prayer of the bill for an accounting to him by said Howison as trustee for 200 shares of capital stock of the said corporation and of the operation of said mine by said corporation, etc., and for a receiver to operate the mine pending the decision, and that he might pay the net earnings of the same to the said Howison in payment of any balance due said Howison.

Respondents answered, denying a partnership or agreement with Baird, and setting up that he was only the agent of Howison in procuring the lease and locating and opening said mine, and that Baird had no interest in the mine, its equipment, or the commissary. The answer further set up that, if there was any agreement, it was a verbal one, and was in reference to real estate, and was violative of the statute of frauds. The answer further set up the drunkenness of Baird and his failure to carry out the contract, and went into details as to the expenditure of Howison in and about the locating, developing, and operating of said mine.

The evidence for complainant tended to support the allegations of the bill, and that for the respondents tended to support the answer. The letter spoken of in the opinion is as follows: "Dear Lavender: Go to Braehead and take inclosed lease, and get him to turn it over to me as my agent, and date it back to within 20 or 30 days after the lease was executed. His creditors are going to make an effort to reach him at Braehead. Baird has no interest in the property until the property pays me back my money and 8 per cent. interest, and then he has a one-half interest, less what other money I have let him have on his private account; and you may read this letter to him, and then give him the letter showing how we stand. Mr. Baird must have $50 per month as living expenses as long as he had managed the property. Go without fail Monday, and execute the papers carefully, for we have no time to lose. Your friend, A. P. Howison." There was judgment for respondents, and complainant appeals.

S. C. Amason and Arthur L. Brown, for appellant.

Tillman, Grubb, Bradley & Morrow, for appellees.

ANDERSON J.

Regardless of the status of the parties...