Malcolm v. Hanmer, 6968

Citation127 P.2d 331,64 Idaho 66
Decision Date13 May 1942
Docket Number6968
PartiesCHARLES H. MALCOLM, in his capacity as Administrator of the Estate of E. M. Christensen, deceased, substituted as appellant in the place and stead of E. M. Christensen, Appellant, v. F. W. HANMER, in his capacity as Trustee, in place of E. W. Whitcomb, Trustee, deceased; C. W. POPE, E. J. PAGE and ELIZABETH PAGE, his wife, CONDOR GOLD MINING COMPANY, a corporation, BUCK HORN GOLD CORPORATION, a corporation, TREASURE GOLD MINING COMPANY, a corporation, and AMERICAN NATIONAL BANK, a corporation, Respondents
CourtIdaho Supreme Court

Rehearing denied July 9, 1942.

MINES AND MINING-OWNERSHIP-EVIDENCE-CONTRACT BY EXCHANGE OF LETTERS-APPEAL AND ERROR-ASSIGNMENT OF ERROR NOT CONSIDERED WHEN.

1. In suit to establish plaintiff's equitable ownership of half interest in mining property and proceeds of sale thereof correspondence between plaintiff and two defendants and evidence of plaintiff's management of property and expenditure of substantial sums of his own money in course thereof held to show that one of such defendants owned property and contracted to give plaintiff half interest therein and that other defendant took title thereto under tax deed in trust for such co-defendant and plaintiff.

2. A letter, forming part of correspondence between parties to action concerning question at issue, is admissible in evidence, as it stands on footing of conversation between parties.

3. The general principles of evidence respecting relevancy and competency are applicable to letters and telegrams, and such writings, constituting correspondence between parties to contract embraced therein, are admissible to prove such contract and its terms and conditions.

4. A letter, containing declarations and admissions against writer's interest, is admissible in evidence against him.

5. In suit to establish plaintiff's equitable ownership of half interest in mining property and proceeds of sale thereof where defendants contended that trust created by one defendant's trust deed, providing for equal division of such proceeds between such defendant and plaintiff, was revoked after date of plaintiff's alleged release of his interest in property, trustee was shown to have co-operated with plaintiff in obtaining compromise settlement of claim for delinquent taxes on property for sum paid by plaintiff after such date, and it did not appear that plaintiff received any consideration for release, trial court's finding that plaintiff released such interest was erroneous.

6. He who comes into equity must come with clean hands.

7. Where plea of statute of limitations in bar of action is neither argued nor briefed on appeal from judgment for defendants, it will not be considered by Supreme Court. (I.C.A., sec. 5-204.)

8. In suit to establish plaintiff's equitable ownership of half-interest in mining property and proceeds of sale thereof, complaint and one defendant's answers held to have formed issues on which case was tried in district court and decided by Supreme Court on appeal, so as to require that petition for rehearing on ground that Supreme Court decided case on new issue, made by such court and not based on any allegation in complaint or answer, be denied.

Rehearing denied July 9, 1942.

APPEAL from the District Court of the Sixth Judicial District of the State of Idaho, for the County of Lemhi. Honorable Guy Stevens, Judge.

Suit to establish an equitable interest in certain mining property, and the proceeds of the sale thereof. Judgment of dismissal. Reversed and remanded with directions.

Reversed and remanded with directions. Costs awarded appellant.

L. E. Glennon, Jones, Pomeroy & Jones and F. A. McCall for appellant.

The contract may be embraced in letters constituting a correspondence between the parties. And such correspondence is admissible for the purpose of proving the contract, its terms and conditions, or letters may be so connected with and related to oral or written contract or other transaction as to become a part of the res gestae and be admissible as such. (22 C.J. 903, sec. 1106; Estate of DeLaveage (Calif.), 133 P. 307; Rogers v. Manhattan Life Ins. Co. (Calif.), 71 P. 348; 65 C.J. 275, sec. 57 and cases cited; Adamson v. Black Rock Power & Light Co., 297 F. 905; Rollestone v. Nat. Bank of Commerce (Mo.), 252 S.W. 394.)

A letter may be introduced when the statements therein have a material bearing upon the issues of the case and meet the general tests of admissibility. Written communications passing between parties to an action and relating to the subject matter thereof are as a rule admissible. (10 Cal. Jur. 889; Nichols, Applied Evidence, vol. 2, sec. 65, p. 1797; Jones, Commentaries on Evidence (2 ed.), vol. 4, sec. 1660, pp. 3047-48; Jones, Commentaries on Evidence (2 ed.), vol. 3, sec. 985, p. 1812; In re: Russell's Estate (Calif.), 210 P. 249.)

When the defendant Page made, executed and delivered to the defendant E. W. Whitcomb the first trust deed by the terms of which the net proceeds of the sale of any property were to be divided equally between himself and the plaintiff Christensen in pursuance of an agreement theretofore made between said E. M. Christensen and C. W. Pope, he constituted himself a trustee for the said Christensen and held in trust for him all property and property rights to which the said plaintiff was entitled under and by virtue of the said agreement with the said C. W. Pope. The trust and trusteeship so created was irrevocable. (Eschen v. Steers, 10 F.2d 739; Harding v. Trust Co. (Mo.), 207 S.W. 68; Melba Frank v. Morris A. Hermann (Mo.), 258 S.W. 1000.)

John W. Jones for respondents, C. W. Pope, E. J. Page and Elizabeth Page.

There is no title or ownership here in Pope which could constitute the subject matter of the trust. If he had no title or ownership in the property he had nothing in which he could create a trust.

"To constitute a trust, there must be (1) some subject matter, (2) a trustee who has the legal but not the equitable title to this subject-matter, and (3) a cestui que trust who has the equitable but not the legal title to this subject-matter. The right of the beneficiary is IN the trust; the obligation of the trustee RESULTS FROM the trust; and the right held is the SUBJECT-MATTER of the trust. All together they constitute the trust. There can be no trust where there is no subject-matter." (Lossie v. Central Trust Co., 292 S.W. 338.)

The letters are not sufficiently certain as to terms and time and extent of performance to constitute a valid contract between Christensen and Pope. The property involved is a valuable and extensive mining property. Christensen was to "take over the handling of the property from me with the understanding that I am to put no more money into it." Only by assuming that a sale of the property by Christensen was a condition precedent to any claim or demand on the part of Christensen can we conclude that the letter has the force or effect of a contract.

"Parties to a contract must express themselves in terms direct and explicit enough to enable their full intention to be ascertained with reasonable degree of certainty.

"Complaint based upon contract not setting time of performance must allege that contract was to be performed within a reasonable time." (Evankovich v. Howard Pierce Inc., 8 P.2d, (Mont.) 653.)

HOLDEN, J. Givens, C. J., and Budge, Morgan and Ailshie, J.J., concur.

OPINION

HOLDEN, J.

E. M. Christensen lived in Lemhi county from 1896 to the day of his death. He was a hard rock miner. Respondents C. W. Pope and E. J. Page (a lawyer and member of the law firm of Page & Lay) were residents of the State of New York.

September 14, 1921, Pope wrote Christensen the following letter:

"I have your favor of September 8th in which you refer to a letter in answer to mine enclosing a copy of Mr. Casterlin's letter to me; I have not received this letter of yours.

"However, after giving the matter thought, I have decided to ask you if you are willing to do the following things:

"1st. Take over the handling of the property from me with the understanding that I am to put no more money into it. That you will finance it from sales of property on grounds, or what you may be able to collect from Mr. Merritt or anyone else owning the company's money (owing the company money?).

"2nd. That you will adjust all matters in Idaho in connection with the death of the watchman under the laws of Idaho which provide that an employee must start action within sixty days, and that if he lets it run longer, it is at his risk.

"If you will do the above, I will agree to give you a one-half interest of my interest in the entire property which really amounts to the ownership in view of the fact that the MANDARIN MINES is heavily indebted to me from money advanced. In fact, the YELLOW JACKET and the MANDARIN MINES owe me something over $ 30,000. for cash advanced.

"If this appeals to you, please advise me at once and I will write you, authorizing you to handle the whole thing as your best judgment dictates, both as to handling the property in the future and to realizing on the present assets and claims that are due the company.

"(Signed) C. W. Pope."

Shortly after the receipt of that letter, to-wit, in October 1921 and pursuant thereto, Christensen took possession of the property therein mentioned. Thereafter, the record does not disclose just when, Pope assigned his claims against "Mandarin Mines" (covering the indebtedness referred to in the above quoted letter) to one Lancaster. Lancaster then prosecuted such claims to judgment in the State of New York, after which he prosecuted an action on the New York judgment in the District Court for Lemhi County, and recovered therein a judgment against ...

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  • Tommerup v. Albertson's, Inc.
    • United States
    • Idaho Supreme Court
    • 5 Febrero 1980
    ..."Where a letter contains declarations and admissions against the interest of the writer, it is admissible." Malcolm v. Hanmer, 64 Idaho 66, 81, 127 P.2d 331, 337 (1942). Accord, 31A C.J.S. Evidence § 272 (1964). The statement need bear on the issue only incidentally or circumstantially in o......
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    ...tactics. The clean hands doctrine is a well-established principle to which this Court has long subscribed. See Malcolm v. Hanmer, 64 Idaho 66, 127 P.2d 331 (1942). Simply stated the maxim stands for the proposition that "a litigant may be denied relief by a court of equity on the ground tha......
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