Robar Corp. v. Kingham

• Decision Date: 19 April 1937
• Docket Number: 2001
• Citation: 51 Wyo. 409,66 P.2d 1046
• Parties: ROBAR CORPORATION v. KINGHAM
• Court: Wyoming Supreme Court

66 P.2d 1046

51 Wyo. 409

ROBAR CORPORATION v. KINGHAM

No. 2001

Supreme Court of Wyoming

April 19, 1937

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by Robar Corporation against Fred Kingham. Judgment for defendant, and plaintiff appeals.

Affirmed.

For the appellant, the cause was submitted upon the brief of Bard Ferrall of Cheyenne.

The findings of fact which are the basis of the judgment are contrary to and not sustained by the evidence. The conclusions of law are erroneous, except as acquired under the agreement. The defendant at the time the agreement was made and thereafter had no title to any part of the building or equipment covered by plaintiff's mortgage. He did not own the Wyoming Robar Corporation's lease to the lands upon which the station had been erected. Slane v. Polar Oil Company, 48 Wyo. 28. The assignment of the leases as security for a debt, being merely a mortgage of the leasehold, the plaintiff was not entitled to possession of the leasehold interest. Smith v. Reigleman, (Ore.) 23 P.2d 129. The plaintiff relinquished its right to take possession of the station and equipment, by reason of the defendant's agreement and fully performed its part of the agreement. The defendant's agreement to pay was based upon the plaintiff's surrender of a valuable right and defendant acquiring an advantage defendant deemed valuable at the time of the agreement. Consequently the agreement is not within the statute of frauds. Rouss v. Cooper, 69 F.2d 671 (C. C. A.) 5th); Waters v. Blackmon, (Ala.) 153 So. 739; Chambers v. Murphy, (Ky.) 234 S.W. 960; Bank v. Whitman, (Mo.) 216 S.W. 835; Miller v Hanna-Logan, Inc., (Colo.) 37 P.2d 393; Dybdahl v Lumber Company, (Wash.) 233 P. 10; Garren v. Youngblook, (N. C.) 176 S.E. 252; Lumber Company v. Cravens, (Cal.) 256 P. 428; Sullivan v. Wholesale Company, (Idaho) 249 P. 895. The intent of the parties controls. 25 R. C. L. 483. The fact that plaintiff's mortgage was not released is immaterial. Frohardt Brothers, et al. v. Duff, (Iowa) 40 L. R. A. (N. S.) 242; Supply Company v. Stockgrowers' Bank, 173 F. 859 (C. C. A. 8th). The agreement is within the rule set forth in Volume 1 of the Restatement of the Law, Contracts, page 244. The plaintiff having performed its part of the agreement at the time the agreement was made, it does not come within the operation of the statute of frauds. Ivenson v. Caldwell, 3 Wyo. 466; Rohrbaugh v. Mokler, 26 Wyo. 514; Stewart v. McKeon, 36 Wyo. 106. The agreement could not be performed within one year and did not come within the first division of Section 47-101, R. S. 1931. 25 R. C. L. 454. The whole amount could have been paid within one year, depending upon gasoline sales. Epstean v. Mintz, (Mich.) 198 N.W. 225; Banta v. Rosasco, (Cal.) 55 P.2d 601; Shumake v. Hawkins, (Texas) 59 S.W.2d 287; Carter White-Lead Co. v. Kinlin, (Nebr.) 66 N.W. 536; Freas v. Custer, (Ind.) 161 N.E. 686. Unless such increase in sales is impossible the contract is one that can be fully performed in one year. Gas Company v. Gilkeson, (Okla.) 16 P.2d 247; Steward v. Sirrine, (Ariz.) 267 P. 598. Although the agreement was one defendant made for his own purposes and was not one which by its terms could not be performed within one year, and no note or memorandum was necessary, nevertheless the memorandum is sufficient evidence of the agreement, if it be found to be within the statute. North Platte Company v. Price, 4 Wyo. 293; Shelvog v. Skjelvaag, (Wash.) 14 P.2d 3; Bank v. Sheldon, (N. Y.) 233 N.Y.S. 634; Willey v. Goulding, (Kan.) 161 P. 611; Duncan v. Wohl, (N. Y.) 195 N.Y.S. 381. The defendant is estopped to use the statute of frauds to escape payment after he has used and enjoyed the property. Walter v. Hoffman, (N. Y.) 196 N.E. 291; Edmonds v. Gourley, (Ill.) 199 N.E. 287; Texas Company v. Burkett, (Texas) 296 S.W. 273.

For the respondent, the cause was submitted on the brief of M. A. Kline of Cheyenne.

The appellate court will not disturb a finding when there is substantial evidence to support it. Hunt v. City of Laramie, (Wyo.) 181 P. 137; Land Company v. Jensen, (Wyo.) 123 P. 415; Company v. Weiss, (Wyo.) 195 P. 527; Riordan v. Horton, (Wyo.) 94 P. 448. An appellate court will not disturb the findings of the trial court where there is substantial evidence to support them, even if the reviewing court might believe that such findings are against the weight of the evidence. Huber v. Bank, (Wyo.) 234 P. 31; Skala v. Michael, (Nebr.) 190 N.W. 878; Platt v. Shields, (Vt.) 119 A. 520; Edgington v. Howland, (Nebr.) 195 N.W. 934. Where the evidence is conflicting, the evidence which supports the findings made by the court will be taken as true. Ketchum v. Davis, (Wyo.) 13 P. 15. Yount v. Strickland, (Wyo.) 101 P. 942; Seaman v. Big Horn Canal Ass'n., (Wyo.) 213 P. 938. A judgment will not be reversed because some of the findings are weak and inconclusive, or even contradictory, if there are clear and substantial findings upon which the judgment may rest. Cameron v. Ah Quong, (Cal.) 165 P. 961; American Nat. Bank v. Donnellan, (Cal.) 148 P. 188; Thayer v. Tyler, (Cal.) 147 P. 979. Where it is charged that the judgment is not sustained by sufficient evidence and is contrary to the evidence, the review must be upon the whole record and the appellate court will not reverse the judgment because of error in any general finding, unless it be prejudicial, and that without such finding the judgment would have been different. Hilliard v. Douglas Oil Fields, (Wyo.) 122 P. 626; Sewall v. McGovern, (Wyo.) 211 P. 96; Thex v. Shrieve, (Wyo.) 267 P. 92. An appellate court will not disturb a judgment based on the credibility of witnesses as against the weight of the evidence. Boyle v. Mountford, 39 Wyo. 141; Wettlin v. Jones, (Wyo.) 234 P. 515; Caswell v. Ross, (Wyo.) 188 P. 977; Bissinger Co. v. Weiss, (Wyo.) 195 P. 527. The evidence is amply sufficient to sustain the findings and judgment of the trial court. Lumber Company v. Oberto, 63 P.2d 456. On the question of the statute of frauds and its application to the facts in the case at bar, we think the point may be regarded as immaterial. The trial court found that there was no such oral agreement between the parties as was alleged in the petition. That even if there had been any such oral agreement, it would have been within the purview of the statute of frauds. Browne, Statute of Frauds, 5th Ed., Sec. 281; Massion v. Congregation, (Wyo.) 276 P. 930; Meyer v. Spink Co., (Ind.) 127 N.E. 455; Warren v. Ayres, (Md.) 95 A. 52; Maxwell v. DeValinger, (Del.) 47 A. 381; Eikelman v. Perden, (Cal.) 74 P. 291; Bickel v. Wessinger, (Ore.) 113 P. 34. The general rule is that a memorandum sufficient to take an oral contract out of the operation of the statute of frauds must contain all the essential terms of the contract in language understandable without parol evidence. Nolan v. Haywood, (Wyo.) 23 P.2d 845; Cushing v. Timber Co., (Wash.) 135 P. 660; Solomon v. McRae, (Colo.) 47 P. 409; Kling v. Bordner, (Ohio) 61 N.E. 148; Wagniere v. Dunnell, (R. I.) 73 A. 309; Bogigian v. Library, (Mass.) 79 N.E. 769. In some jurisdictions, the memorandum must express a consideration. Drake v. Seaman, 97 N.Y. 230; Barney v. Forbes, (N. Y.) 23 N.E. 890; Seymour v. Warren, (N. Y.) 71 N.E. 260. The Colorado statute is similar to that of Wyoming. In the case of Mueller Furnace Company v. Stove Supply Company, 246 P. 272, it was held that a consideration should be expressed. The point is supported by Williston on Contracts, Secs. 570-574. The expression of a desire to pay the debt of another is not a promise to do it. In re Wright's Estate, 25 A. 877; Greer Machinery Company v. Stains, 59 S.W. 599; Holt v. Akerman, (N. J.) 88 A. 408. The judgment below should be affirmed.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

In the early part of September, 1932, the Wyoming Robar Corporation was running a filling station in Cheyenne, Wyoming. It was in financial trouble. It owed the State of Wyoming about four thousand dollars, and the state, seemingly, closed up the place. The corporation also had given a chattel mortgage for one thousand dollars to Lottie Shoemaker. This mortgage was a prior lien on the property of the corporation. It also owed bills for labor, the sum of $ 2500 to the Robar Corporation of Colorado, the plaintiff herein, which was secured by a chattel mortgage (junior to that of Lottie Shoemaker), and the sum of $ 1300 to the defendant (respondent here) Fred J. Kingham. The total sum which the Wyoming Robar Corporation then owed is estimated to have been approximately $ 10,000. The filling station was located upon leased ground, and the defendant, apparently as security for the amount owing him, had obtained an assignment of the leases. During the time when the filling station was still being operated he occupied part of the premises, selling rubber tires, and when the filling station was closed, he thought it best, for his interests, to attempt to conduct the station himself, and so took possession of it and apparently was running or attempting to run the place on or about September 10, 1932.

Mr Rosenfield was president of the Robar Corporation, the Colorado corporation. When he heard that the filling station had been closed, he came to Cheyenne to look after the interests of his corporation. He had various conferences with Kingham, the defendant. The parties discussed as to whether the defendant should continue to conduct the station, and pay the plaintiff's claim, or whether the plaintiff should take over the station and pay the defendant's claim. Rosenfield testified that as a result of these negotiations, defendant agreed, in consideration of plaintiff foregoing the foreclosure of...