Coughanour v. Grayson

• Decision Date: 31 January 1911
• Parties: WILLIAM A. COUGHANOUR, Appellant, v. GEORGE W. GRAYSON, Respondent
• Court: Idaho Supreme Court

113 P. 724

19 Idaho 255

WILLIAM A. COUGHANOUR, Appellant, v. GEORGE W. GRAYSON, Respondent

Supreme Court of Idaho

January 31, 1911

MINING CLAIMS-INTEREST IN-AGREEMENT TO SELL-INTEREST IN NET PROFITS-MANAGEMENT-SALE OF-STATUTE OF FRAUDS-PAYMENT OF PURCHASE PRICE.

(Syllabus by the court.)

1. Under the provisions of sec. 6007 of the Rev. Codes, no estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.

2. Under the provisions of sec. 6008, Rev. Codes, it is provided, among other things, that the provisions of sec 6007 must not be construed so as to abridge the power of any court to compel the specific performance of an agreement in case of part performance thereof.

3. Held, under the evidence that the plaintiff had paid the full purchase price for a one-seventh interest in the mining claims involved, or in the net proceeds arising from the working or sale thereof.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action to recover a one-seventh interest of the net proceeds arising from the sale of certain mining claims. Judgment for the defendant. Reversed.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellant. Petition for rehearing denied.

Hawley, Puckett & Hawley, for Appellant.

Several writings of different dates may be read in connection with each other to show a memorandum of an agreement, when taken as a whole. (Beckwith v. Talbot, 2 Colo. 639; Townsend v. Kennedy, 6 S.D. 47, 60 N.W. 164; Ide v. Stanton, 15 Vt. 685, 40 Am. Dec. 698; Fisher v. Kuhn, 54 Miss. 480.)

The rule as laid down above is applicable where the contract is made by an agent of the party and the memorandum is signed by him during the existence of his agency. (White v. Dahrquist Mfg. Co., 179 Mass. 427, 60 N.E. 791.)

We desire to call the attention of the court to the statute of frauds, which has been invoked by the answer, and upon which the decision of the lower court is based. Sec. 6007, Rev. Codes, is modified by sec. 6008, "nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof." (McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020; Feeney v. Chester, 7 Idaho 324, 63 P. 192; Male v. Leflang, 7 Idaho 348, 63 P. 108; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Francis v. Green, 7 Idaho 668, 65 P. 362; Barton v. Dunlap, 8 Idaho 82, 66 P. 832; Grice v. Woodworth, 10 Idaho 459, 109 Am. St. 214, 80 P. 912, 69 L. R. A. 584; Fleming v. Baker, 12 Idaho 346, 85 P. 1092; Thompson v. Burns, 15 Idaho 572, 99 P. 111; Ames v. Howes, 13 Idaho 756, 93 P. 35.)

Cavanah & Blake, for Respondent.

Counsel for plaintiff take the position that there are sufficient memoranda in writing in the shape of letters, telegrams, etc., to show that there was an agreement and what the terms of the agreement were. We contend that all the memoranda taken together are not sufficient to fulfill the requirements of the statute. (Williams v. Morris, 95 U.S. 444, 24 L.Ed. 360; Whelan v. Sullivan, 102 Mass. 204; Wood, Statute of Frauds, sec. 345; Cooley v. Lobell, 153 N.Y. 596, 47 N.E. 783.)

The memorandum or writing, whether made at the time or after, must be sufficient within itself, and cannot be aided by parol evidence. (Ross v. Allen, 45 Kan. 231, 25 P. 570, 10 L. R. A. 835; Odell v. Montross, 68 N.Y. 499; Doty v. Wilder, 15 Ill. 407, 60 Am. Dec. 756; Ellis v. Denver Ry. Co., 5 Kan. App. 341, 48 P. 457; Darke v. Smith, 14 Utah 35, 45 P. 1006.)

Nothing was done by plaintiff in this case which in any way could be construed as being part performance of the oral agreement, if there was an oral agreement. (Burden v. Sheridan, 36 Iowa 125, 14 Am. Rep. 505.)

Counsel quote from the syllabus of the case of Feeney v. Chester, 7 Idaho 324, 63 P. 192. The facts in that case, as well as in every Idaho case cited by counsel, show that there was a part performance of the contract. Counsel for appellant use considerable space in their brief to show the character of services rendered by appellant in the performance on his part of the alleged contract. We can assume for the purposes of this case that appellant performed all the services he claims he did, yet he did nothing that could be construed to be such a part performance of the contract as to entitle him to specific performance on the part of the defendant. If appellant performed any services whatever, he was not without remedy, for he could have brought an action to recover the value of the services.

Although the alleged agreement was void, if appellant performed any services, they could easily be measured in an action at law and a recovery could have been had, as the action would lie on the implied promise to pay for said services. (20 Cyc. Law & Procedure, 299.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was originally commenced in the district court of Boise county, and the mining claims referred to herein are situated near Quartzburg in said county. By stipulation of parties the cause was transferred to the Ada county district court for trial. After the transfer, plaintiff, without objection, filed his amended complaint.

The complaint shows, among other things, that on June 12, 1896, the plaintiff, together with Thomas Mootry, Jr., and David E. Coughanour, were, and for more than five years prior thereto had been, the owners of the Pioneer, Gold Hill, Dunlap and the Confederate lode mining claims situated in Granite creek mining district, Boise county; that by reason of trouble between the owners of said mining claims, suit had been commenced in the district court of said Boise county for the division or sale of said mining claims and a decree had been entered therein directing such sale, which sale was made by the sheriff of that county; that Robert R. Grayson, son of the respondent, prior to the sale, had informed himself with reference to said mining claims and had resolved to purchase them in behalf of himself and the respondent; that plaintiff had for a number of years been the manager in the operation of said mining claims, and prior to the said sheriff's sale said Robert R. Grayson proposed to appellant that he would at said sheriff's sale purchase said mining claims and pay for them and make such expenditures as were necessary for the future development thereof, and in consideration of plaintiff's giving him certain information and advising him as to the proper course of procedure and best method of working them, and assisting him in the working or disposing of said claims, and aiding him to prevent future litigation in regard thereto, he would pay the plaintiff one-seventh of all the profits in the workings of said claims, in the event they were worked, and one-seventh of all moneys or other matters of value derived from the sale thereof, less the expenditures made thereon, and that plaintiff agreed to said proposition and said contract was entered into between him and said Robert R. Grayson who represented himself and the defendant in said matter; that such proceedings were had at such sale that the said Robert R. Grayson bought in said claims for the sum of $ 4,500 and took a deed therefor; that under such sale the respondent and the said Robert R. Grayson, who is now deceased, frequently advised with the plaintiff in regard to the best procedure and method of working the claims and disposing of them, and in reference to legal complications surrounding them under the terms of said agreement; that afterward, and in the year 1899, the respondent succeeded to the entire interest of said Robert R. Grayson in said mining claims, and since that time and up to the time of selling them to other parties, was the sole owner thereof; that at all times prior to acquiring title to said mining claims in his own name, the respondent was aware of the contract between plaintiff and his son Robert, and assented thereto, both orally and in writing, and in 1897, at Boise City, Idaho, renewed the contract and agreement made between Robert R. Grayson and the plaintiff with reference to the interest of plaintiff in said mining property; that in August, 1906, the defendant sold and disposed of the property in question, receiving a large sum therefor; that appellant thereafter demanded a settlement or accounting with the respondent, which was refused, and the plaintiff therefore asks as his relief in the action "that the defendant be adjudged to account and pay to plaintiff one-seventh of all amounts received by him from any source in and about said mining claims over and above the amount paid out by him for said claims, or on account thereof."

The respondent answered the amended complaint and denied upon information and belief the ownership of the property in litigation upon the part of plaintiff and his associates and the troubles between them, but admits that a suit was brought for a division or sale of the property; also that prior to the sale of the property, Robert R. Grayson (defendant's son) made examination of the property and avers that he made such examination as defendant's agent, but denies that he was agent in all matters affecting said property; denies on information and belief that the alleged agreement between plaintiff and Robert R. Grayson had ever been made or that plaintiff had ever been...