Crosby v. Strahan's Estate, 2811

• Decision Date: 15 April 1958
• Docket Number: No. 2811,2811
• Citation: 324 P.2d 492,78 Wyo. 302
• Parties: Ivy W. CROSBY, as Administratrix of the Estate of Jesse Crosby, Deceased, Plaintiff and Respondent, v. ESTATE OF L. S. STRAHAN (also known as Leonard S. Strahan) Deceased, A. E. Longfellow, as Executor of the Estate of L. S. Strahan (also known as Leonard S. Strahan) Deceased, Defendant and Appellant, Carter Oil Company, Minnelusa Oil Corporation, Defendants.
• Court: Wyoming Supreme Court

Page 492

324 P.2d 492

78 Wyo. 302

Ivy W. CROSBY, as Administratrix of the Estate of Jesse Crosby, Deceased, Plaintiff and Respondent, v. ESTATE OF L. S. STRAHAN (also known as Leonard S. Strahan) Deceased, A. E. Longfellow, as Executor of the Estate of L. S. Strahan (also known as Leonard S. Strahan) Deceased, Defendant and Appellant Carter Oil Company, Minnelusa Oil Corporation, Defendants.

No. 2811.

Supreme Court of Wyoming.

April 15, 1958.

Bowman & Bowman, Robert B. Bowman, Lovell, for appellant.

Thomas M. McKinney, Basin, and C. R. Harkins, Worland, and Carroll M. Dunnum, Downey, Cal., for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action for specific performance as hereafter mentioned. Jesse Crosby, referred to herein as Crosby, died on August 20, 1952. Ivy W. Crosby, his widow, is administratrix of his estate, is the plaintiff herein, and is generally referred to herein as the plaintiff. L. S. Strahan, also known as Leonard S. Strahan, hereinafter referred to as Strahan, died on December 25, 1953, in Big Horn County, Wyoming; and A. E. Longfellow is the executor of his estate and is defendant herein. The Carter Oil Company was made a party defendant herein because of the ownership of the oil interests aside from that owned by Strahan, and the briefs herein do not concern themselves with this defendant, and we need not make any particular reference to that defendant hereafter. On May 22, 1937, Strahan acquired a 1% royalty interest in the so-called Johnson Watson lease, comprising lots 6 and 7, E1/2 SW1/4 and SE1/4, sec. 6, all of sec. 8, all of sec. 18, T. 57 N., R. 99W, all of sec. 12, and the N1/2, sec. 14, T. 57 N., R. 100W, containing 2542.48 acres more or less.

The action herein is one to specifically perform an oral contract entered into between Strahan and Crosby for 1/2 of the 1% royalty interest owned by Strahan in the above-entitled property and for an accounting of the income therefrom. The consideration for that as alleged is substantially to this effect: Strahan offered to assign to Jesse Crosby 1/2 of 1% interest of Strahan in the above lease in consideration of Crosby's accompanying Strahan to Powell, Wyoming, and aiding Strahan in establishing the interest of Strahan in the aforesaid oil lease; Jesse Crosby accepted that offer, accompanied Strahan to Powell, Wyoming, testified on behalf of Strahan, otherwise aided Strahan to establish Strahan's interest therein, and fully performed all of the conditions on his part to be performed. That is the substance of the plaintiff's petition herein, and it is not necessary to set out the pleadings of plaintiff any further. The claim of plaintiff was filed in the matter of the estate of L. S. Strahan on December 4, 1954. The defendant, executor of the estate, in addition to generally denying the validity of the claim of the plaintiff, also contended that the action herein is barred by the statute of limitations, and that it is unenforceable by reason of the statute of frauds.

In order that there may be no misunderstanding, we have deemed it best to set out in detail the claim of the plaintiff herein.

The testimony as to the contract claimed by the plaintiff and the admissions in connection therewith are as follows:

Mrs. Ivy W. Crosby, widow of Jesse Crosby and administratrix of his estate, testified in substance as follows:

In the fall of 1943 Strahan came to my husband and said, 'Jess, I'm in a pickle. I have this lease from Mr. Johnson in the Elk Basin [oil] field. I've written that out as a percent and not a royalty. Jess, you know, you were with me and you know that was supposed to be a royalty. Will you help me?' And he mentioned that he had to clarify Mrs. Davis' lease at the same time. So Jesse said, 'I'll help you', and Strahan said, 'I'll tell you, Jess, if you will, I'll give you one-half of what I can save from my 1%. If I can save a full 1% royalty, I'll give you half of that. Will you go with me?' My husband said, 'I'll be ready to go tomorrow.' They went and they were gone all day. When they came back Strahan and my husband sat down in the living room and talked, and my husband said, 'Now, Leonard, there's no better time than right now to make me that 1/2 of 1% on this Johnson lease.' Strahan said, 'Jess, maybe I'd better wait until the Carter [oil company] recognizes this as a 1%. If they'll recognize this as a royalty now that Mr. Johnson has declared the royalty, then I'll give you half of that.' Well, then it went on to 1944 and my husband then asked Strahan, 'Leonard, when are you going to make that royalty to me? You know you haven't done it yet and that Johnson Watson lease is going to get drilled out the first thing you know, and it's a lot easier to part with royalty before it starts to pay money.' Strahan said, 'I know that, Jess, and I'll get that done.' In January 1945 Strahan told may husband that he would get at making out a deed for the 1/2% royalty. Strahan said for my husband to wait, that he was busy every day at that time. I [the witness] went to Strahan's office and asked him if he would please make out this royalty and take it down to him [the witness' husband]. After my husband died, about two or three weeks after that, Strahan stopped in to my house and I said to him that I was sorry that he hadn't fulfilled his promise. Strahan said that he was very sorry that he hadn't gotten down and said, 'I promise you, Mrs. Crosby, as soon as I get back from'--I think he was going to Washington on an Indian deal up to the Northwest--'I'll get that taken care of.' In the early part of December 1953 I went to Mr. Strahan's office and he was very ill, and I asked him if he had that paper made out on the Johnson lease, and he said, 'No, not yet, but I'll get at it.' It was not long after that when he died.

The witness Charles F. Welch testified in substance as follows:

Sometime in 1943 or 1944 Strahan was interested in Mr. Crosby's going to Powell to help him bring to a head this 1%, whether it was a royalty or a working interest. Mr. Strahan was worried as to whether it was one or the other. If it was a working interest, he would have to contribute to the work that was done. He told Jesse that if he would go to Powell with him and see this man and get that straightened out he would give him a part of his interest, 50% of what interest Mr. Strahan had. He stated that he had a 1% interest. Mr. Crosby replied that he would go with him and help him out if he could. A month or six weeks or two months later I overheard Mr. Crosby and Mr. Strahan talking as to whether or not Strahan would make out that part interest to him [Mr. Crosby]. As I remember, Mr. Crosby asked Mr. Strahan if he wouldn't make him out that 50% of his royalty there as a deed so that he could have it recorded. He said it would be a lot easier to fix out then than it would be after. Mr. Strahan said, 'I'll take care of it, Jess, and see that it's fixed up.' At a later time I heard a conversation between Mr. Crosby and Mr. Strahan. Mr. Crosby said that he would like to have this thing straightened out, this royalty business, that it had run long enough and 'I don't know what this is going to do to me.' He said, 'Would you fix that up for us so that we would have it?' Mr. Strahan said that he would take care of it and he apologized for not doing it.

The witness Rodney W. Crosby, son of Jesse, testified in substance as follows:

On January 11, 1945, Strahan was present in the house of Jesse Crosby. My father asked Mr. Strahan if he wouldn't transfer 1/2% in the Johnson Watson lease that he figured he had earned, and Mr. Strahan answered that he would take care of it. I heard about the same conversation once a week for the next three or four months.

The witness Ruth A. Davis testified in this connection that Strahan said to her that he would have to have an affidavit from Mr. Johnson in connection with the royalty of 1%; that he would contact Mr. Johnson and get the affidavit; that for a consideration Mr. Crosby would swear that the deed was correct and as it should be; and that it was just a boner on his [Mr. Strahan's] part that kept it from being correct.

The witness Betty C. Meeks, a daughter of Jesse Crosby, testified in substance as follows:

I heard a conversation between Strahan and my father in my father's home. My father said to Mr. Strahan, 'Well, Len, I would surely appreciate it if you would get those papers made out on the Johnson Watson lease. I feel that this is coming to me and I would like to have those papers made out.' Mr. Strahan said that he was on the way to Billings and that he would see what he could do about fixing them up when he returned. I heard another conversation between my father and Strahan in August 1945. My father said, 'Len, if you would just see that those papers are made out to me, that would be one of the most important things you could do for me.' Mr. Strahan stated that he was busy with other affairs and that he was on his way to Billings to catch a plane for somewhere and that he would see that they were made out upon his return. In April or May 1946, my father said to Strahan, 'Strahan, have you made out the papers on the Johnson Watson lease to me yet? I feel like we're letting this thing go by, and something needs to be done.' Mr. Strahan said that he was leaving soon for Washington and that upon his return he would see if he could get the papers made out. My father said, 'Well, I'm sure you will sometime, Len, as soon as you get back.'

Theodore P. Strahan, son of Leonard S. Strahan, testified in substance as follows:

Sometime during 1943 or 1944 I heard my father and Mr. Crosby arguing. Mr. Crosby wanted to know when my father was going to give him his half of the old Johnson Watson lease. My father said as soon as he got back from a trip. Mr. Crosby said, 'Well, you've been saying that for quite...