Coray v. Holbrook

• Citation: 121 P. 572,40 Utah 325
• Decision Date: 30 January 1912
• Docket Number: 2268
• Court: Utah Supreme Court
• Parties: CORAY v. HOLBROOK et al

121 P. 572

40 Utah 325

CORAY v. HOLBROOK et al

No. 2268

Supreme Court of Utah

January 30, 1912

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Action by Elizabeth H. Coray, as administratrix of the estate of Don R. Coray, deceased, against LaFayette Holbrook and W. B Searle, in which defendant W. B. Searle filed a counterclaim against defendant Holbrook.

Judgment for defendant Holbrook. Plaintiff and defendant Searle appeal.

AFFIRMED.

Dey &amp Hoppaugh and E. A. Walton for appellant Coray.

E. E. Corfman for appellant Searle.

E. C. Lackner, F. F. Steigmeyer and J. W. N. Whitecotton for respondent.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The plaintiff, the administratrix of the estate of Don R. Coray, deceased, brought this action against the defendants Holbrook and Searle for an accounting and to recover whatever money and property might be found due her.

The substance of the complaint is that the deceased and the defendant Searle, in 1892, 1893, and 1894, explored, investigated, and surveyed Provo River and canyon, selected reservoir sites, made maps, drawings, and plans for the purpose of establishing and locating reservoir sites, and for developing and diverting water for irrigation and for power for the generation of electrical energy for light and power, and that the water and water rights and reservoir sites so selected were then unappropriated, and were subject to appropriation for such purposes.

It is further alleged:

"(5) That while so engaged in said acts of appropriation they employed the defendant Holbrook as their trustee and agent in the consummation of said appropriation and in the formation of said plan, and to aid and assist them in making a practical use and disposition of the said properties and interests then owned by them and to be acquired in the further progress of said project; and it was then and there agreed between said Coray, Searle, and Holbrook that the said Holbrook would secure a purchaser, or interest other parties with capital, who would take over the said interests and property of the said Searle and Coray then owned and to be further acquired in the development of said plan. That it was then agreed between the said Coray said Coray, Searle, and Holbrook that Holbrook would, in his own name, as trustee, and in trust for said Searle and Coray, locate the reservoir sites pointed out to him and theretofore selected by said Searle and Coray, and make appropriations, as such trustee, of said waters and water rights for said purposes, and the said Holbrook then and there agreed to secure for said Searle and Coray ten percent of the capital stock of any corporation thereafter organized to take over said plan and properties, or any corporation that might be formed, based upon the proposition and scheme involved in the said appropriations, surveys, and other work of and acts of the said Searle and Coray in the premises; and it was further agreed that the said Holbrook should receive as his compensation one-third of whatever should be realized from said interests."

It is then alleged that Holbrook, as trustee for Searle and Coray, located the reservoir sites and water rights or water power to generate electric energy for light and power at the places indicated to him by Searle and Coray, and "thereafter procured divers parties to become interested therein and a certain corporation to be formed, based upon said appropriations and properties of the said Searle and Coray," and "transferred and conveyed all of said property to the Telluride Power & Transmission Company," and that Holbrook received from the Telluride Power Company, "on account of said property and interests and rights transferred" by him to it, "large sums of money and large amounts of stock and property, amounting in the aggregate to at least $ 200,000." It is further alleged that a demand was made on Holbrook, on or about the 7th day of April, 1905, for an accounting, and that he refused to account.

Upon these allegations the plaintiff asked that Holbrook be required to account, and that she be given a "judgment for whatever amounts, both of money and property, may be found due her, and for an undivided one-third of all the moneys and property which the said Holbrook has received on account of said Don R. Coray, deceased," and for general equitable relief.

It is alleged in the complaint that the deceased died on the 18th day of October, 1899, and that the plaintiff was appointed administratrix of his estate in February, 1905, and that no administration of the estate had theretofore been had.

The defendant Searle filed an answer, admitting all the allegations of the complaint, and filed a counterclaim against Holbrook, in which the same allegations are made as are contained in the complaint. The defendant Searle, in effect, is a plaintiff as against Holbrook, and seeks the same relief sought by the plaintiff. They may therefore both be treated as plaintiffs.

Holbrook filed an answer to the complaint and counterclaim, admitting the demand for an accounting and his refusal to account, and denying all other allegations of the counterclaim and of the complaint, except the death of the deceased and the appointment of the plaintiff as administratrix of his estate. He also pleaded the statute of frauds, alleging that the contract or agreement set forth in the complaint and counterclaim was not in writing nor evidenced by any memorandum, and that the alleged trust or relation was not declared, granted, or created by any writing or memorandum, and as is in such case required by section 2461, R. S. 1898, and the statute of limitations, alleging that the action was not commenced within four years after the cause of action accrued, and as in such case provided by section 2883, R. S. 1898.

The case was tried to the court, who found the issues in favor of the defendant.

The court found that Searle and Coray, in 1892, 1893, and 1894, made preliminary surveys of the canyon "at a cost of not exceeding $ 1000, including rough maps and sketches of said surveys, looking to the establishment of reservoir sites and the development of water power"; that in the year 1894 they had a conversation with Holbrook "in relation to the disposition of any rights that they might have acquired in said canyon and river; but no agreement was entered into concerning the same." The court further found that Holbrook made no location or appropriation of reservoir sites, or water rights, as trustee for Searle and Coray; that he procured no one to become interested, or any corporation to be formed, based upon any appropriations or properties of Searle and Coray; that he received no property from them and held none in trust for them, nor transferred, nor conveyed, any to the Telluride Power Company, or to any one; and that he received nothing from the Telluride Power Company, or any one, "on account of any property in which they, or either of them, had any interest." No findings were made in respect of the special pleas of the statute of frauds and of limitations; and, if the findings which were made by the court are correct, no findings on such pleas were necessary.

A judgment was entered in favor of the defendant, dismissing the complaint and counterclaim on the merits, from which both plaintiffs have prosecuted this appeal. They assail the findings.

The evidence shows substantially the following facts:

Searle and the deceased, prior to 1894, made explorations and a survey of the canyon, and in 1892 posted a notice along the river at a point called "Hanging Rock," to obtain and divert water of the river at that point for power and irrigation purposes. The notice was not recorded nor was there any work done or commenced by them, except the making of the survey and the posting of the notice. They were unable to finance or proceed with the contemplated enterprise. In the summer or early fall of 1894, they spoke to Holbrook about it, and interested him in it. Some verbal negotiations and understanding were then had with him to the effect that he was to interest others of means and capital. The terms of such negotiations or understanding will be referred to later. Thereafter Holbrook interested a Mr. Nunn and his associates, who later organized the Telluride Power Company, and who made an appropriation and diversion of water of the river for power and other purposes, and constructed and operated a power plant for the generation of electrical energy for light and power. Holbrook first conversed and negotiated with Mr. Nunn about the matter in the summer or fall of 1894, either shortly before or after his talk and negotiations with Searle and the deceased. Nunn then already had some knowledge of and some acquaintance with the canyon from reports made to him by his engineer, who had visited and explored the canyon in 1893. Nunn and Holbrook, after their conversation, and in September, 1894, visited the canyon and drove along the river. Later Nunn sent his engineer to the canyon, who made explorations and a survey with a view of obtaining and diverting water from the river for power and other purposes. In October, 1894, Holbrook posted a notice, in the name of "L. Holbrook, Trustee," along the river, to obtain and divert water of the river for power and other purposes, at a place called "Bridal Veil Falls," which is more than a mile down the river from the place where Searle and the deceased had posted their notice. Thereafter Holbrook assisted Nunn and his associates in making further surveys, building flumes, diverting the water, and constructing a power plant. The deceased for a time, and Searle for a long time, were also employed by Nunn and his associates in and about the work, as well as...