Chisholm v. Redfield

• Decision Date: 02 December 1959
• Docket Number: No. 4196,4196
• Citation: 75 Nev. 502,347 P.2d 523
• Parties: Harold S. CHISHOLM, Appellant, v. L. V. REDFIELD, Respondent.
• Court: Nevada Supreme Court

Page 523

347 P.2d 523

75 Nev. 502

Harold S. CHISHOLM, Appellant, v. L. V. REDFIELD, Respondent.

No. 4196.

Supreme Court of Nevada.

Dec. 2, 1959.

Ernest S. Brown, Reno, for appellant.

Woodburn, Forman, Wedge, Blakey & Thompson, Reno, for respondent.

BADT, Justice.

Appellant has appealed from a judgment awarding respondent an injunction against appellant, and from an order denying appellant's motion to dissolve an earlier preliminary injunction. The parties will be referred to by name.

Redfield's complaint, filed June 3, 1957, alleged Chisholm's indebtedness to him in a sum in excess of $250,000 theretofore advanced by him to Chisholm for the financing and operation of two lumber yards in Washoe County. He alleged that on January 1, 1957 the two agreed that Redfield was to operate and manage the lumber yards until sufficient moneys were realized by way of profits or from a sale of the business to reimburse him; that on June 3, in violation of the agreement, Chisholm padlocked the gates and closed the lumber yards, rendering their operation by Redfield impossible, with resulting irreparable damage to Redfield unless Chisholm was restrained from interference with Redfield's operations. No other relief was sought. Chisholm's answer admitted padlocking the lumber yards on June 3, 1957, but denied all other material allegations of the complaint.

The case was tried by the court without a jury and the court made findings to the effect that in August 1955 Chisholm sought financial assistance from Redfield for the operation of the former's lumber business, at which time Redfield agreed to lend Chisholm from time to time amounts equal to one-half of Chisholm's inventory and two-thirds of his accounts receivable; that by January 1, 1957 Redfield had advanced to Chisholm in excess of $250,000, which was then due and owing; that on January 1, 1957 the parties agreed that Redfield should assume the entire management and control of said lumber business until such time as sufficient money was received, either by way of profits or the sale of said business, to reimburse Redfield for all money advanced by him to Chisholm; that on June 3, 1957 Chisholm closed and padlocked the yards, making it impossible for Redfield to operate them; that unless restrained, Chisholm would prevent Redfield's operation, whereby Redfield would suffer great and irreparable injury; and that Redfield had no plain, speedy, or adequate remedy at law.

Chisholm asserts several grounds for reversal: (1) that the evidence does not support the findings, (a) as to the asserted agreement, or (b) as to the advancement of any money to Chisholm individually; ¹ (2) that the evidence shows that the advances by Redfield were not made to Chisholm but partly to H. S. Chisholm, Inc., and partly to Reverside Lumber Company, a corporation, or to Oregon-Nevada Lumber Company, a corporation; that the advances were not loans but contributions to the capital stock of Oregon-Nevada Lumber Company, to which Chisholm had likewise contributed capital by way of the lumber yards owned or leased by him and sundry improvements, trucks and other equipment aggregating some $92,000 in value; (3) that even if such agreement had been made as alleged and found by the court, it was so indefinite, ambiguous, and uncertain as not to support an injunction; (4) that Redfield, in suing Chisholm as an individual, had in effect established a receivership of Oregon-Nevada Lumber Company, with himself as the receiver, without the sanction of any of our statutory requirements essential to a corporate receivership; (5) that the agreement is void under the statute of frauds because (a) it was equivalent to a lease of lands for more than one year, and (b) because it was not to be performed within one year; and (6) that the agreement is void for want of consideration and lack of mutuality.

(1) Redfield testified definitely and positively to the agreement placing the operation and control of the lumber yards in his hands, detailing the circumstances and conversations leading up to it. This was met by positive denials by Chisholm. The testimony was in diametrical opposition. The trial court chose to accept the testimony of Redfield and to reject that of Chisholm. We must accordingly hold that there was support for the finding that the agreement was made. State ex rel. Department of Highways v. Shaddock, 75 Nev. ----, 344 P.2d 191; Swartout v. Grover Collins Drilling, etc., 75 Nev. ----, 339 P.2d 768.

(2) The same situation applies to appellant's contention that all of Redfield's advances were made to one or another of the three corporations mentioned and none to Chisholm as an individual. Fifty pages of cross-examination met with Redfield's constant insistence that he dealt with Chisholm as an individual. When confronted with his numerous checks, all payable to Oregon-Nevada Lumber Company, the fact that they were deposited to the credit of that company in the bank, and that payments for merchandise, expenses, etc. were all by way of checks drawn in the name of Oregon-Nevada Lumber Company, signed by him and Chisholm, and later by him alone, he insisted that this was merely a matter of mechanics; that Chisholm was simply operating under a new name and that he, Redfield, was continuing to finance him under the original agreement. Many circumstances and particular transactions were inquired into, and many activities in the relationship appeared to be casual, informal, and slipshod in the extreme. Chisholm had pleaded that the parties were engaged in a joint adventure, and there was evidence of something in the nature of a joint adventure whereunder both Redfield (by way of cash) and Chisholm (by way of his lumber yards, stock, and equipment) contributed to the capital of a corporation...