Hunt v. Pick, 5395

• Citation: 240 F.2d 782
• Decision Date: 16 January 1957
• Docket Number: No. 5395,5396.,5395
• Parties: Kay HUNT, Appellant, v. Vernon J. PICK, Appellee. Andrew HUNT, Appellant, v. Vernon J. PICK, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

240 F.2d 782 (1957)

Kay HUNT, Appellant, v. Vernon J. PICK, Appellee.

Andrew HUNT, Appellant, v. Vernon J. PICK, Appellee.

Nos. 5395, 5396.

United States Court of Appeals Tenth Circuit.

January 16, 1957.

Horace J. Knowlton, Salt Lake City, Utah, and Stanley W. Johnson, Washington, D. C. (Albert V. Witham, Denver, Colo., was with them on the brief), for appellants.

Donald S. Stubbs, Denver, Colo. (Groves, Dufford & Turner, Grand Junction, Colo., Lewis, Grant & Davis, Denver, Colo., Donald J. Dufford, Grand Junction, Colo., Donald W. Hoagland, Denver, Colo., and Russell B. Pace, Jr., Englewood, Colo., were with him on the brief), for appellee.

Before PHILLIPS, MURRAH, and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

A summary judgment was granted in favor of defendant-appellee, Vernon J. Pick, dismissing with prejudice the complaints of the plaintiffs-appellants, Andrew Hunt and Kay Hunt¹ by the United States District Court for the District of Colorado. The two cases were consolidated for trial and appeal since both complaints demanded an accounting for profits realized through the operation and sale of uranium claims located in the Muddy River area in Southeastern Utah, and were based upon the same oral partnership agreement which, it is alleged, the three men entered at about the time the claims were located in 1952.

The complaints, filed June 7, 1955, as later amended by stipulation, declared that on or about the 3rd day of July, 1952, the defendant and two plaintiffs entered into an oral contract whereby it was agreed that they would jointly stake out, file, explore, improve and operate certain unpatented mining claims known as Delta 1, 2, 3, 4, 5, 6 and 7; that the parties were to participate in the partnership on the basis of 30% for plaintiff Andrew Hunt, 20% for plaintiff Kay Hunt, and 50% for defendant Vernon Pick; that the plaintiffs have performed work upon the claims according to the agreement but that defendant has neglected and refused to render an accounting on profits arising out of the operation or out of the sale of the property in 1954. Defendant denied the formation of the partnership and answered that plaintiffs had been paid as employees for their labor on the claims; that they had, for a consideration, executed instruments which demonstrated accord and satisfaction; that the asserted claims of plaintiffs were barred by the Utah and Colorado statutes of frauds;² and finally that the doctrines of laches and equitable estoppel were applicable. The motion for summary judgment was based on similar grounds and was supported by defendant's affidavits, depositions of plaintiffs taken pursuant to discovery procedures, and several documents, including a memorandum purportedly signed by Andrew Hunt disclaiming any interest or ownership in the Delta claims. Affidavits in resistance to the motion set forth that payments received by plaintiffs were in accord with the partnership agreement; that the instruments of disclaimer and accord were forged and fraudulent; and denied the conclusion that the defenses of laches, estoppel and the statute of frauds were applicable summarily or at all. The trial court granted a summary judgment adverse to plaintiffs without specifying its legal basis.

The power of the court to grant summary judgment is limited to those instances where no genuine issue of fact exists which is determinative of duty or right. Broderick Wood Products Co. v. U. S., 10 Cir., 195 F.2d 433; Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568; Dulansky v. Iowa Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881; Schreffler v. Bowles, 10 Cir., 153 F.2d 1. The power to summarily grant or refuse relief is admittedly drastic, never proper where an issue turns on credibility, and is intended to be and is proper only in those instances where a trial would be useless. However, where multiple claims are made or multiple defenses are asserted the remedy is proper if no genuine issue of fact exists relative to any one claim or defense that is determinative of part or all of the issues. The existence of disputed facts on other issues does not defeat the proper application of summary disposition to those issues where no such dispute exists.

It is immediately apparent in the instant case that a controversy exists involving disputed facts decisive of the existence or non-existence of a partnership between the parties; that the controversy extends to a claim and denial of factual matters affecting a termination of all or any legal relationship between the parties; that the possible and proper application of the pleaded statutes of frauds cannot be determined absent the truth relative to the words and conduct of the parties at the inception of their association. These claims and denials involve genuine factual disputes and cannot be tried by affidavit and counter-affidavit. We presume therefore that the trial court based its judgment of dismissal upon the sole remaining question of laches.

Since the doctrine of laches is a creature of equity and but distantly, if at all, related to the statutory limitation of time for bringing an action at law, each situation must be examined in the light of its own particular facts. Patterson v. Hewitt, 195 U.S. 309, 25 S.Ct. 35, 49 L.Ed. 214. The essential question to be determined is whether the assertion of the plaintiffs' cause has, through lapse of time considered with the circumstances and nature of the alleged cause, become unconscionable and, if allowed to prevail, would constitute an injustice to defendants. To this end we examine the claim of the plaintiffs Hunt.

According to the testimony offered by the two plaintiffs in discovery depositions, the first overtures toward a business agreement were made on about June 19, 1952, when Vernon Pick announced his discovery and discussed his location on the Muddy River with Andrew Hunt at Hunt's home. Hunt was not immediately receptive to Pick's suggestions and no final agreement was reached. On June 22, Pick sent a message via Hunt's son for Andrew to come at once as he needed his help. During the discussion on that date, Hunt said that he wanted it understood that he had the right to locate around Pick's claims.

On June 24, Pick and Andrew Hunt went to the location; Hunt saw Pick's discovery monument there at that time and recommended that four additional claims be staked surrounding the existing one. Pick, who was ill, suggested that Hunt get another man, put in the discovery monuments, and guard the claims.

On June 27, Hunt and one Ekker went to the claims and wrote location notices in the names of Hunt and Pick. Copies of the location notices in Hunt's possession were later destroyed. These notices were never recorded and eventually, upon Pick's suggestion, changed to Pick's name only.

On July 1, the Black Jack claims, approximately three miles from the Deltas and across the river,...