Colorado & Utah Coal Co. v. Harris

• Decision Date: 09 September 1935
• Docket Number: 13289.
• Citation: 97 Colo. 309,49 P.2d 429
• Parties: COLORADO & UTAH COAL CO. v. HARRIS et al.
• Court: Colorado Supreme Court

49 P.2d 429

97 Colo. 309

COLORADO & UTAH COAL CO. v. HARRIS et al.

No. 13289.

Supreme Court of Colorado, En Banc.

September 9, 1935

Error to District Court, City and County of Denver; E. V. Holland Judge.

Suit by the Colorado & Utah Coal Company against George W. Harris and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

HILLIARD and BOUCK, JJ., dissenting.

.

Dines, Dines & Holme, Milton J. Keegan, and Robert E. More, all of Denver, for plaintiff in error.

Lewis &amp Grant and F. W. Sanborn, Jr., all of Denver, for defendants in error.

BURKE Justice.

Plaintiff in error is hereinafter referred to as the Colorado Company or as plaintiff, and defendants in error as Harris, the Harris Company, the Grassy Company, and Whittaker respectively, or as defendants.

This is a suit in equity brought by the Colorado Company to impress a trust upon certain coal lands standing in the names of defendants. To review a judgment against it, plaintiff prosecutes this writ.

Harris was president of the Colorado Company from its organization in 1914 until 1927, and continued as a director for some two years thereafter. Whittaker was one of its employees. Its claim is based upon the allegations that Harris, prior to the termination of his said official relationships, secretly purchased, through Whittaker, 160 acres of coal land, known as the 'Dawson tract,' and secured from the United States a prospecting permit on 120 acres, known as the 'permit area'; that he conveyed these to the corporate defendants; that plaintiff had an expectancy in these properties; and that Harris, because of the fiduciary capacity in which he obtained his knowledge of the value of the properties in dispute, because this was obtained at the expense of plaintiff, and because he gave plaintiff no opportunity of acquiring the same, now holds in trust. Harris denies the expectancy and some of the material facts upon which it rests; alleges that he never actively participated as a director of the Colorado Company after September, 1927; admits the purchase of the Dawson tract, the securing of the permit, and their conveyance; and denies generally plaintiff's other material allegations. He further charges a conspiracy on the part of plaintiff, its officers, directors, and stockholders, to monopolize the coal business, by reason of which he says it comes into equity with unclean hands. Since Harris controls the Harris Company and the Grassy Company, and merely availed himself of the services of Whittaker as an agent for the transfer of title, the record justifies us in treating this as a suit between the Colorado Company and Harris.

The trial court found against Harris on his allegation of conspiracy. Otherwise it found for defendants on 'all issues herein joined, both of fact and of law,' and gave them judgment for costs.

Plaintiff's presentation here is limited to a single assignment, which reads: 'The court erred in finding that an agent may acquire property in which his principal has an expectancy; and the court erred further in finding that plaintiff had no expectancy in the property upon which it seeks to impose a trust.'

There have been filed herein over 300 printed pages of briefs and 1,500 of abstract. We have spent much time on this record. It would be an interminable, and wholly superfluous, task, to attempt in this opinion to review the evidence presented in these 4,000 folios. If such a review were comparatively comprehensive, it would fill a large portion of one of our reports. If not, it would be neither satisfactory nor informative to the losing party. In no event could such a review, extended or abbreviated, be of value to the successful party or of service as a precedent to bench or bar. Suffice it to say that on all major points in dispute we think the evidence either clearly supports the judgment or is simply conflicting. That the findings of the trial court under such circumstances must stand is no longer questionable. Roberts et al. v. Dietz, 88 Colo. 594, 598, 298 P. 1062; McLean et al. v. Jones Administrator et al., 90 Colo. 213, 218, 8 P.2d 261.

Were it otherwise, counsel for plaintiff have put the matter at rest by saying: 'We shall not, of course, seek a review of questions of fact upon which there was conflicting evidence.' They contend, however, that, accepting that view of such evidence most favorable to defendants and adding thereto undisputed evidence favorable to plaintiff, which is all that is required under the rule, the judgment is still unsupported. We do not so read the record.

Plaintiff seeks to establish a trust in which the alleged fraud of Harris, actual or constructive, is an essential element. Evidence thereof must be 'clear,' 'convincing,' 'certain,' 'unequivocal,' 'trustworthy,' 'conclusive.' Mullen v. McKim et al., 22 Colo. 468, 472, 45 P. 416; Deaner v. O'Hara et al., 36 Colo. 476, 479, 85 P. 1123; Irvine v Minshull, 60 Colo. 112, 119, 152 P. 1150. ...