Roberts v. Roberts

• Court: Colorado Supreme Court
• Writing for the Court: ALTER, Justice.
• Citation: Roberts v. Roberts, 113 Colo. 128, 155 P.2d 155 (Colo. 1945)
• Decision Date: 02 January 1945
• Docket Number: 15461.
• Parties: ROBERTS v. ROBERTS et al.

155 P.2d 155

113 Colo. 128

ROBERTS v. ROBERTS et al.

No. 15461.

Supreme Court of Colorado, En Banc.

January 2, 1945

Error to District Court, Larimer County; Frederic W. Clark, Judge.

Suit by James E. Roberts against George F. Roberts and Ernest W Roberts, doing business under the firm name and style of Roberts Bros. Cattle Company, for a partnership accounting and specific performance, consolidated with a suit by James Evan Roberts against Ernest W. Roberts for cancellation of a certain deed. To review adverse judgments, plaintiff brings error on a consolidated record.

Judgment in partnership accounting proceedings reversed with instructions.

BAKKE J., dissenting in part.

Waldo Riffenburgh, of Fort Collins, and Horace N Hawkins and Horace N. Hawkins, Jr., both of Denver, for plaintiff in error.

Fancher Sarchet, of Fort Collins, for defendant in error Ernest W Roberts.

ALTER Justice.

Plaintiff in error here, James E. Roberts, was plaintiff in the trial court, and defendants in error, George F. Roberts and Ernest W. Roberts, doing business under the firm name and style of the Roberts Brothers Cattle Company, were defendants in an action begun in the district court for a partnership accounting and specific performance. James Evan Roberts, plaintiff in error, was the plaintiff, and Ernest W. Roberts was the defendant in a suit begun in the district court for the cancellation of a certain deed. The two cases were consolidated for trial and were brought to this court on a consolidated record. We deem it advisable to announce separate opinions in these cases and shall now determine the accounting and specific performance suit.

The complaint alleged a partnership entered into between the plaintiff and defendants on December 26, 1930; demand for an accounting and its refusal; sought the execution of a deed to certain lands; and prayed for an order of the court requiring defendants to account and to convey to plaintiff an undivided one-fourth interest in approximately thirty sections of land owned by defendants as tenants in common. George F. Roberts did not enter any appearance. The answer of Ernest W. Roberts admitted the execution of the document hereinafter set forth but denied that a partnership was ever entered into or consummated. Admitted that no accounting had been made and denied and interest in plaintiff in the partnership business. For a second and third answer, respectively, defendant Ernest W. Roberts plead laches and the statute of limitations.

The evidence was that Ernest W. Roberts is the uncle and George F. Roberts is the father of plaintiff. Ernest W. Roberts and George F. Roberts had long been copartners carrying on a large cattle and ranch business in Larimer county, Colorado, under the firm name and style of the Roberts Brothers Cattle Company, and the families of both defendants resided on the cattle ranch. Ernest W. Roberts was childless, and the plaintiff was the only child of George F. Roberts.

In the fall of 1930 plaintiff was a student at the Colorado Agricultural College in Fort Collins. On December 26, 1930, the following document was executed:

'Whereas, George F. Roberts and Ernest W. Roberts have for a long period of years conducted in the County of Larimer and State of Colorado a general ranch and cattle business, under the firm name and style of The Roberts Brothers Cattle Company, and

'Whereas, James E. Roberts, of the county of Larimer and State of Colorado has purchased a one fourth interest in said company, now, therefore, this agreement drawn in triplicate this twenty sixth day of December, A.D.1930, entered into by and between the said George F. Roberts and Ernest W. Roberts of the first part and James E. Roberts of the second part,

'Witnesseth. That said first parties for and in consideration of the sum of one thousand (1000) dollars to them in hand paid by the said James E. Roberts, the receipt whereof is hereby acknowledged, do sell and convey unto him, the said James E. Roberts, an entire one fourth interest in and of the said The Roberts Brothers Cattle Company. That is to say, each of said first parties, George F. Roberts and Ernest W. Roberts does hereby convey to the said James E. Roberts an entire one eighth interest in said business.

'It is Especially understood and agreed by and between the parties hereto that from and after the date hereof the said James E. Roberts shall be liable for one fourth of all expenses and losses hereafter incurred in conducting said business, and shall be entitled to claim, use and enjoy one entire fourth of the net profits arising from the said business.

'It is farther agreed that the said business shall continue to be conducted under the firm name and style of the Roberts Brothers Cattle Company.

'Witness our hands this 26th day of December, A.D. 1930.

'The Roberts Brothers Cattle Company

'Geo. F. Roberts

'Ernest W. Roberts

'J. Evan Roberts'

Subsequent to December 26, 1930, plaintiff discontinued his studies at the Colorado Agricultural College and remained at home on the cattle ranch continuously thereafter until he entered the armed forces of the United States. His activity in connection with the cattle and ranching business is a disputed fact, but one which we consider more or less immaterial.

Plaintiff became interested in alabaster products, first as a hobby and thereafter as a business proposition, mining the alabaster on lands owned by the defendants as tenants in common. During the first three or four years after December 26, 1930, plaintiff received sums of money from the Roberts Brothers Cattle Company through Ernest W. Roberts, who kept all the books and records thereof. The exact amount paid plaintiff during these three or four years was undisclosed. The amicable and brotherly relationship between Ernest W. Roberts and his brother, George F. Roberts, for a period of half a century became strained, for reasons unexplained. So far as the evidence discloses, the plaintiff did all that was requested or required of him in connection with the ranch and cattle business.

The evidence discloses that George F. Roberts admitted the existence of the partnership from and after December 26, 1930, until the date of the...