Ivins v. Hardy

• Decision Date: 02 May 1950
• Docket Number: No. 8889,8889
• Citation: 217 P.2d 204,123 Mont. 513
• Parties: IVINS v. HARDY.
• Court: Montana Supreme Court

Page 204

217 P.2d 204

123 Mont. 513

IVINS v. HARDY.

No. 8889.

Supreme Court of Montana.

Argued Feb. 1, 1950.

Decided April 3, 1950.

Rehearing Denied May 2, 1950.

George W. Farr, Miles City, Roland V. Colgrove, Miles City, Dougherty & Larson, Helena, for appellant.

W. B. Leavitt, Miles City, Chester E. Onstad, Broadus, J. E. Porter, Crawford, Neb., for respondent.

FREEBOURN, Justice.

This appeal comes from the district court of the sixteenth judicial district of the state of Montana, in and for the county of Custer, the Hon. S. D. McKinnon, district judge presiding.

R. L. Ivins, plaintiff and respondent, on February 28, 1945, filed his amended complaint herein alleging that he and Robert F. Hardy, defendant and appellant, on September 20, 1939, entered into an oral partnership agreement to purchase, and did purchase, from Arthur McIntosh, trustee, ranch lands in Custer and Powder River counties, known as the 'L O Ranch,' 'East Ash Creek Ranch' and the 'Gibbs Ranch,' for $117,094.91, payable in installments, and to lease and purchase additional lands adjoining such McIntosh lands in order to block their holdings into compact units; such leases and purchases of additional lands to be made by defendant for the mutual and joint benefit of both parties; that defendant was to mandge a joint ranch operation on the lands while at the same time each of the parties engaged in individual ranch operations on such lands. The complaint alleged performance of such agreement along with many other matters of a detailed nature. It asserted defendant had failed to carry out his obligation and asked the court to dissolve the joint partnership operation; order an accounting; sell all the property, pay the debts and divide any surplus remaining between the parties.

Issues were made by answer and reply and the cause was tried by the lower court sitting without a jury. Findings of fact and conclusions of law were made and an interlocutory decree entered. By this decree the lower court found the parties were joint adventurers, ordered the venture dissolved, directed an accounting be had and the property, real and personal, sold. From this interlocutory decree defendant appealed. That appeal was decided by this court on April 15, 1947, in Ivins v. Hardy, 120 Mont. 35, 179 P.2d 745, 749.

Upon the return or the cause to the lower court, such court appointed three referees who made an accounting. The report of the referees being filed, the lower court made findings of fact and conclusions of law, and entered a decree in favor of plaintiff, which included a money judgment for $24,009.72. From this decree and judgment defendant appeals.

Appellant raises the question: Was the purchase by Hardy of additional lands adjoining the McIntosh lands a part of the joint adventure?

This court in the first appeal, Ivins v. Hardy, supra, settled that question by announcing the evidence sufficient to show a joint adventure existed to purchase additional lands for the mutual and joint benefit of the parties. We held the accounting to be taken should so show and 'plaintiff should receive the benefit thereof and be charged with his share of the purchase price.'

This pronouncement became the law of the case and must be adhered to throughout subsequent proceedings both in the trial court and upon subsequent appeal. Carlson v. Northern Pac. Ry. Co., 86 Mont. 78, 281 P. 913; Anderson v. Border, 87 Mont. 4, 285 P. 174; Apple v. Edwards, Mont., 211 P.2d 138.

The transcript before us of 817 pages shows Hardy did purchase such additional lands. The referees' report so finds, describing such lands. The trial court found such lands were purchased and held they were the joint property of Ivins and Hardy.

The second question involves the Statute of Frauds. Defendant denied that there was an agreement to lease and purchase additional lands for the mutual and joint benefit of the parties. Such denial gave him the right to contend, and he does contend, that such agreement, if made, was void because neither the agreement nor any note or memorandum thereof was in writing. Christiansen v. Aldrich, 30 Mont. 446, 76 P. 1007; Mitchell v. Henderson, 37 Mont. 515, 97 P. 942; Bauer v. Monroe, 117 Mont. 306, 158 P.2d 485.

Both parties had performed and were performing their part of the oral agreement to buy the ranch properties, of which the agreement to buy additional lands was a part. Defendant had purchased the additional lands and all that remained to be done was to deed plaintiff's interest to him.

It would be a fraud to permit defendant to retain plaintiff's interest in such lands. That such agreement or some note or memorandum thereof was not in writing is not a defense here. McIntyre v. Dawes, 71 Mont. 367, 229 P. 846; Eccles v. Kendrick, 83 Mont. 120, 259 P. 609.

This is in keeping with R.C.M.1947, Sec. 74-203, providing: 'No agreement for the sale of real property, or of any interest therein, is valid, unless the same, or some note or memorandum...