Bingham v. Walker Bros., Bankers

• Decision Date: 07 November 1929
• Docket Number: 4831
• Citation: 283 P. 1055,75 Utah 149
• Court: Utah Supreme Court
• Parties: BINGHAM v. WALKER BROS., BANKERS

283 P. 1055

75 Utah 149

BINGHAM v. WALKER BROS., BANKERS

No. 4831

Supreme Court of Utah

November 7, 1929

Rehearing Denied January 16, 1930.

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Action by Sanford L. Bingham, as administrator of the estate of Elias W. Crane, deceased, against Walker Bros., Bankers, as administrator of the estate of Lewis Merriman, deceased wherein defendant filed certain counterclaims. Decree for plaintiff, and defendant appeals.

AFFIRMED, AND REMANDED WITH DIRECTIONS.

Ball, Musser & Mitchell, of Salt Lake City, for appellant.

J. D. Skeen, of Salt Lake City, for respondent.

EPHRAIM HANSON, J. CHERRY, C. J. and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur.

OPINION

EPHRAIM HANSON, J.

Elias W. Crane died intestate December 19, 1925. The plaintiff, Sanford L. Bingham, was appointed administrator of the estate of the deceased January 10, 1927, by order of the district court of Utah county, state of Utah. As such administrator he brought this action in the district court of Salt Lake county against Walker Bros., Bankers, administrator of the estate of Lewis Merriman, deceased, to have 3,628 shares of stock in the Chief Consolidated Mining Company adjudged to be the property of the estate of Elias W. Crane, deceased, and also to recover from the defendant the money which the defendant is alleged to have received from the mining company as dividends on the stock. In this connection the plaintiff avers that at the time of his death Elias W. Crane was the owner of the mining stock in question; that it had been issued in three certificates in the name of Lewis Merriman; and that the certificates were by Merriman indorsed in blank and one of them for 3,428 shares was in possession of James H. Norman, who held the same as collateral security for the payment of three promissory notes in the aggregate sum of $ 2,500 from Crane to Norman; that the other two certificates of stock for 100 shares each were held by Merriman for the use and benefit of Crane. Plaintiff further avers that Merriman died intestate May 15, 1926, and that when the defendant, Walker Bros., Bankers, was appointed administrator of his estate, it took possession of the certificates for the 200 shares of stock and that it has collected dividends on all of the stock amounting to $ 794.70.

The defendant does not seriously deny that the ownership of the stock is in the Crane estate. At the trial of the case the defendant assumed the burden of going forward with the proof, and it seems that the principal controversy grows out of the counterclaims interposed by the defendant to the plaintiff's complaint. The defendant has interposed three such counterclaims. For its first counterclaim, the defendant alleges that on and between August 8, 1921, and May 8, 1925, Lewis Merriman loaned to Elias W. Crane $ 2,020.45 on divers dates and in various amounts as follows:

August 8, 1921

$ 1,000.00

August 21, 1921

67.75

October 21, 1921

500.00

February 6, 1922

3.60

July 1, 1922

26.60

July 3, 1923

97.50

September 4, 1923

22.00

October 2, 1923

28.00

November 8, 1923

25.00

September 16, 1924

25.00

November 22, 1924

35.00

November 4, 1924

100.00

November 8, 1923

50.00

May 8, 1925

40.00

Total

$ 2,020.45

--which the defendant promised to pay with interest on demand, but that no part thereof has been paid except the sum of $ 794.94 which was credited pro rata on the first three items; that as collateral security for the payment of such indebtedness Crane issued the certificates of stock to Merriman. It is also alleged that the claim was presented to the plaintiff in due time, but that the same was denied July 13, 1927.

As a second counterclaim it is alleged by the defendant that after Crane's death, and before an administrator of his estate had been appointed, Merriman, at the request of Crane's widow, employed counsel to negotiate a settlement of certain asserted claims and demands on the part of John B. McMillan against the Crane estate; that such services were reasonably worth the sum of $ 125; that the Merriman estate is obligated to pay this sum; and that a claim for this amount was also presented to the plaintiff in due time and the same was denied July 13, 1927.

As a third counterclaim it is alleged that Crane at the time of his death was indebted to the John B. McMillan estate in the sum of more than $ 4,500; that after Crane's death and before the appointment of an administrator of his estate, the heirs of the McMillan estate threatened to enforce payment of such indebtedness; that with the knowledge of Crane's widow, and at her request, Merriman, to protect the interests and conserve the assets of the Crane estate, agreed to pay the McMillan estate the sum of $ 4,500 in full settlement of its claim against the Crane estate, but that before the consummation, Merriman died; that negotiations for settlement were taken up by the defendant, and that the defendant paid $ 4,500 to the heirs of John B. McMillan pursuant to the written authority of Crane's widow "wherein and whereby * * * she promised and agreed that the repayment thereof to this defendant should be collaterally secured by 2528 shares of the capital stock of the Chief Consolidated Mining Company." It is alleged that the $ 4,500 payment was necessary to protect the interest of the Crane estate and that it effected a substantial saving to he estate, "and that by reason of said payment this defendant has become and is the equitable assignee of" the claim which the heirs of the McMillan estate had against the Crane estate, "and this defendant is accordingly subrogated to all of the rights and interests and remedies" which were available to the McMillan heirs or that might now be available to them were the claim yet unpaid.

It is also alleged that in due time defendant presented to the plaintiff a duly verified claim against the Crane estate for $ 4,500 with interest, and that on July 13, 1927, the same was refused and disallowed.

In his reply to the counterclaims of the defendant, the plaintiff admits that the defendant presented the various claims and that the same were denied; denies that deceased was indebted to Merriman in the sum of $ 2,020.45 or any other sum; denied that deceased was indebted to the McMillan heirs in the sum of $ 4,500 or any other sum; and alleges that the claims set forth in the first and third counterclaims, if any ever existed, are barred by the provisions of Comp. Laws Utah 1917, §§ 6464, 6466, subd. 2, and section 6467.

During the time the case was pending in the district court, various stipulations were entered into between the parties for the purpose of selling the stock upon a favorable market. Eleven hundred shares of the certificate of stock held by Norman as collateral security were sold and his note, with interest, was paid and taken up and a new certificate for 21,328 shares was issued in the name of Walker Bros., Bankers, and finally the balance of the stock was sold and converted into money and the money deposited with the bank pending the outcome of this litigation.

The case was tried to the court, who, on the first counterclaim, found that Lewis Merriman did not make a loan of $ 2,020.45, or of any other amount, to Crane, and that Crane did not cause the stock to be issued to Merriman as security for the payment of a loan of any kind, and that Merriman had no claim to or lien on said stock or any part thereof.

The court found, on the second counterclaim, that the employment of counsel to negotiate a settlement of a claim made by J. B. McMillan was without authority and the money paid for such services, if any, by Merriman, is not chargeable against the estate of Elias W. Crane, deceased.

The court found on the third counterclaim that Elias W. Crane, deceased, was not indebted to the estate of J. B. McMillan in the sum of $ 4,500, or any other sum whatsoever; that his widow had no authority to bind the estate by consenting to a payment of a claim against it; that she had no authority to create a lien upon the stock of Elias W. Crane held by Lewis Merriman, deceased, during his lifetime; that there was no lien on said stock created in favor of the defendant by its payment of $ 4,500 to the heirs of the McMillan estate; that the defendant is not an equitable assignee of any claim of the heirs of the McMillan estate against the estate of Elias W. Crane, deceased; and that the defendant is not subrogated to the rights or remedies that would be available to said heirs had the defendant not paid the alleged indebtedness.

Decree was entered in favor of the plaintiff and against the defendant, from which the defendant has appealed.

The defendant, by its assignments of error, has raised the question of the sufficiency of the evidence to justify the findings of fact, conclusions of law, and decree.

In support of its first counterclaim the defendant introduced in evidence a paper containing a list of the items set out in the counterclaim. Over the top of the figures were written the words, "Loans to Elias W. Crane." Mrs. Mellor a witness for the defendant, testified that some time during the summer of 1925 she and Merriman were in the course of assembling items from various canceled checks and stubs from old check books and other memoranda when Mr. Crane came in; that he saw the paper and picked it up, and in a conversation with Merriman said, "The figures are all right to here"; that the figures indicated appeared above the total of $ 2,020.45. The witness testified that her part of the work consisted of searching among old checks and check stubs of Merriman's, and that Merriman wrote the items down on the paper that represented loans. There is evidence that the...