Mecum v. Metz

• Decision Date: 05 February 1924
• Docket Number: 1034
• Citation: 30 Wyo. 495,222 P. 574
• Parties: MECUM v. METZ, ET AL
• Court: Wyoming Supreme Court

222 P. 574

30 Wyo. 495

MECUM v. METZ, ET AL

No. 1034

Supreme Court of Wyoming

February 5, 1924

APPEAL from District Court, Converse County; RALPH KIMBALL, Judge.

Action by William F. Mecum against Henry Metz and others, upon a contract for service. Heard on demurrer to plaintiff's petition. Judgment for defendants and plaintiff appeals.

Affirmed.

Diefenderfer & Wakeman and Raymond La Fleich & Kem for Appellant.

The agreement was not within the statute of frauds, 4719 C. S. not being for the sale of real estate or the lease thereof but one of employment, fixing compensation of an attorney the agreement was one of association and not a contract to convey; locations of mineral ground upon public land are of course property, 18 R. C. L. 1152; Mount Rosa v. Palmer, (Colo.) 77 Am. St. Rep. 245, but the transaction was not a sale; words are to be taken in their usual sense, 4570 C. S., Cone v. Ivinson, 4 Wyo. 203, 33 P. 31; Anderson Dic. 914; the meaning of the term "sale" is well understood, 2 Bouvier's Dic. 943, "Five Per Cent Cases", 28 L. ed. 198; Coulter v. Trust Co. (Ore.) 26 P. 565; Hampton v. Moorhead, (Ia.) 17 N.W. 202; Nor. P. Co. v. Sanders, 47 F. 604; Labarre v. Klosterman, (Neb.) 49 N.W. 1102; Mora v. Murphy, (Cal.) 23 P. 63; Cooper v. State, 37 Ark. 412; Holman v. Bank, 12 Ala. 369; Spinney v. Hill, (Minn.) 84 N.W. 116; Williamson v. Berry, (U. S.) 12 L. ed. 1170. An agreement to locate and patent mineral land is not a contract to convey, Lipscomb et al. v. Nichols, 6 Colo. 290; Walker v. Bruce, (Colo.) 97 P. 250; Moritz v. Lavelle (Cal.) 18 P. 803; Eberle v. Carmichael, (N. M.) 47 P. 717; Note 102 Am. St. Rep. 238, 20 Cyc. 230; 1 Devlin on Real Estate (3 Ed.) 233a; Huff v. Hardwich, (Colo.) 75 P. 593; possession and recognition of appellant's interest is a waiver in any event of the bar, created by statute, Murley v. Ennis, 2 Colo. 300. Metz admitted appellant into possession; appellant expended money for development of the land; Metz had no title to convey at the time appellant was employed.

Hagens & Murane for Respondent, Ross Lambert.

Appellant contends that the agreement was not one for the sale of real estate, but a contract of employment; an agreement of association, and even if within the statute of frauds, he having been admitted into possession of the mining claims, respondents are estopped to set up the statute; his suit was not for specific performance; the agreement was oral and within the statute, 4719 C. S., the word "sale" is susceptible of a broader meaning than an exchange of property for cash, Mansfield v. Ass'n., 97 P. 150; Hughes v. Washington, 72 Ill. 84; Davis v. Middleton, 14 Cal. 540; Roberts v. Ry. Co., 158 U.S. 1, as applied to liquor sales, it means disposition for money, property or other valuable consideration. Mason v. Lothrop, 73 Mass. (7 Gray) 354-358; Howard v. Harris, 90 Mass. (8 Allen) 297-299; U. S. v. Vinson, 8 F. 507; Huff v. Hall, (Mich.) 23 N.W. 88; Com. v. Clark, 80 Mass. 367-372; State v. Tehan, 50 Conn. 92-99. It is likewise so held in private transactions, Berger v. U. S. Steel Corp., (N. J.) 53 A. 68; Cole v. Cole, 54 So. 553, 25 R. C. L. 133, 371; 20 Cyc. 299, also in cases where decedent has promised to convey in consideration of services rendered during old age, Ellis v. Carey, (Wis.) 42 N.W. 253; Cooper v. Colson, (N. J.) 58 A. 337; 3 Pom. Eq. Jur. 457; Stellmacher v. Bruder, (Minn.) 95 N.W. 324. The allegations of the petition are, that Metz was the owner of unpatented lode mining claims; this was not a "grub stake" contract, 3 Lindley 2117, Sec. 858. Appellant's allegations of improvement are indefinite; an oral agreement accompanied by possession does not take the case out of the statute, McLain v. Healy, (Wash.) 168 P. 1; or an oral agreement to sell growing hay, Ross v. Cook, (Kans.) 80 P. 38. Where acts accompanied by temporary possession may be compensated in damages, there can be no specific performance, Kelsey v. McDonald, (Mich.) 42 N.W. 1103; Hunt v. Lipp (Neb.) 46 N.W. 632; Mann v. Mann, (Cal.) 91 P. 994. Joint possession with owner will not take the case out of the statute, Chadwick v. Felt, 35 Pa. St. 304; Wright v. Puckett, (Va.) 22 Grat. 370, 23 Cent. Dig. c. 2401.

Nichols and Stirrett for respondent, Henry Metz.

Sale transactions are not restricted to money considerations. U. S. v. Vinson, 8 F. 507; Com. v. Clark, 80 Mass. 367; Berger v. U. S. Steel Corp., 53 A. 68; Reed v. Golden, 28 Kans. 632, 42 Am. Rep. 180; any valuable consideration is sufficient, Yick Sung v. Herman, 2 Cal.App. 633, 83 P. 1089; Radbaugh v. Scanlan, 82 N.E. 544; Micks v. Stevenson, 51 N.E. 492; Colorado v. Laird, 121 Ia. 146, 96 N.W. 744; especially when the meaning of a private contract demands it, Mansfield v. Ass'n., 97 P. 150; any contract to convey land in consideration of services must be in writing, 25 R. C. L. 724; Jackson v. Stearns, 58 Ore. 57; part payment in cash for service or otherwise, is sufficient performance to take an oral contract out of the operation of the statute, Williams v. Morris, 95 U.S. 444; Baldwin v. Squier, 31 Kans. 283; Brown v. Hogue, 35 Minn. 373; Dean v. Anderson, 34 N.J. Eq. 496; Ludwig v. Bingert, 48 A.D. 613; Armstrong v. Kattenhorn, 11 Ohio 265; Eason v. Eason, 61 Tex. 225; Grant v. Grant, 63 Conn. 530. An agreement to pay for personal services by testamentary provision, which includes real estate, is within the statute, Ellis v. Carey, 4 L. R. A. 55. Part performance will not take the case out of the statute, Blanchard v. McDougal, 6 Wis. 157; Smith v. Finch, 8 Wis. 245.

William O. Wilson for respondent, Edward D. Lorimer.

The transaction is a sale, Iowa v. Illinois, (U. S.) 28 L. ed. 198; Anderson's Dic. 914; Dunn v. Mayo Mills, 134 F. 804; 2 Kent 416; Mansfield v. Ass'n., 97 P. 150; Ullman v. Land, (Tex.) 84 S.W. 294, 20 Cyc. 227; possession shown by the evidence here is insufficient to satisfy the statute, Riggs v. Adkins, (Ore.) 187 P. 303; Rohrhaugh v. Mokler, 26 Wyo. 520; Ellis v. Carey 42 N.W. 252; Goodloe v. Goodloe, 92 S.W. 767; Stillmacher v. Bruder, 95 N.W. 324; Wallace v. Long, 5 N.E. 666. The principle of Association does not apply, Walker v. Bruce, (Colo.) 97 P. 250; Moritz v. Laveille, (Cal.) 18 P. 803; Eberle v. Carmichael, (N. M.) 47 P. 717; Coughanour v. Grayson, (Idaho) 113 P. 724; Huff v. Hardwick, (Colo.) 75 P. 593. The agreement must be written, 2 Brown St. Fraud, p. 4, 20 Cyc. 210, 296, 298; Montana & Wyoming Co. v. Gibson, 19 Wyo. 1; Murely v. Ennis, 2 Colo. 300 does not apply.

Deifenderfer & Wakeman in Reply.

Where oral agreements creating interest in land have been carried into effect by the parties, the rights acquired are not affected by the statute. Rohrbaugh v. Mokler, (Wyo.) 188 P. 448.

ILSLEY, District Judge. POTTER, Ch. J., and BLUME, J., concur.

OPINION

ILSLEY, District Judge.

In this case separate demurrers of the several defendants were sustained to plaintiff's second amended petition, whereupon, plaintiff refusing to plead further but electing to stand upon said petition, judgment was rendered for the defendants. The case is here on direct appeal from that judgment. The facts set forth in the second amended petition and which stand admitted by the demurrer in the cause are briefly stated as follows:

That the plaintiff is a practicing attorney; that in January 1916, in consideration of professional services to be performed by the plaintiff within a year for the defendant Henry Metz, they entered into an oral contract whereby the defendant Henry Metz was to convey to the plaintiff an undivided one-third interest in seven certain lode mining claims, and agreed to make plaintiff a part owner therein as soon as the work and services were performed; that at the time the agreement was entered into a man by the name of Demmon had made a homestead entry over the mining claims and that in September 1913 Demmon offered commutation proof on his homestead entry and a final receipt was issued to Demmon upon the very lands covered by the seven mining claims; that later Metz filed a protest in the Douglas Land Office against the homestead entry, commutation proof and final receipt, and the protest was disallowed by the local Land Office and also by the Commissioner of the General Land Office, and that Metz appealed to the Secretary of the Interior. That the agreement with reference to plaintiff's third interest in the lands was entered into between the parties while the appeal was pending before the Secretary of the Interior, and the plaintiff was to do whatever was necessary as an attorney to secure a hearing on the protest and to prevent issuance of the Patent to Demmon, and to save the defendant, Metz, his rights in the lode mining claims, and should this be done the defendant, Metz, would convey to Mecum an undivided one-third interest in said mining claims; that the services by the plaintiff were duly performed resulting in the reversal of the Commissioner of the General Land Office, and the plaintiff thereafter succeeded in bringing about a compromise and settlement between Metz and Demmon, whereupon Demmon relinquished his homestead entry, and that the plaintiff, Mecum, performed all of the conditions of his contract, and that through the work and professional services of the plaintiff, Metz saved and recovered his mining claims, and that Metz admitted the plaintiff in the possession as an owner of an undivided one-third interest in said mining claims, and until May 1918 recognized and admitted the right and title of the plaintiff to his one-third interest; and that after the completion and performance of the oral agreement plaintiff demanded the conveyance in writing of the undivided one-third interest in said mining claims, but the defendant Metz neglected and refused and still refuses to...