Smith v. Howard, 8154
| Decision Date | 02 March 1955 |
| Docket Number | No. 8154,8154 |
| Citation | 280 P.2d 1060,76 Idaho 235 |
| Parties | Delpha R. SMITH, a widow, and Everest G. Smith, a widower, Plaintiffs and Respondents, v. Clare HOWARD and Marie Howard, husband and wife, and Charles Gerhauser, Defendants and Appellants. |
| Court | Idaho Supreme Court |
Laurence N. Smith and Meek & Miller, Caldwell, for appellant.
Caldwell, Alexanderson & Davis, Caldwell, for respondent.
This action was brought by respondents, owners of a two-thirds interest in certain improved real estate to have the property sold, the proceeds from the sale distributed and paid to the parties entitled thereto. Appellants Howard and wife own a one-third interest. The property cannot be partitioned without injury to the owners.
Appellants filed a cross-complaint alleging that the improvements on the premises enhanced the value $20,000 and that they advanced $9,705.11 to construct such improvements; that $9,000 was furnished by funds other than those furnished by appellants. It was admitted by all the parties that the property could not be divided and that it should be sold; that a mortgage outstanding against the property on which there is a balance unpaid of $8,000, held by a man named Gerhauser, dated January 13, 1949, should be first paid.
In the cross-complaint appellants asked that from the proceeds of the sale the costs and mortgage be first paid; that the value of the alleged improvements placed upon said premises by appellants be ascertained and determined and paid to them, and the balance, if any, divided among the parties conformable to their respective interests.
The trial judge decided the matter adversely to the contention of appellants and decreed that from the proceeds of sale, after payment of the costs, the mortgage be paid, and the balance be distributed to the co-owners, one-third to Delpha R. Smith, one-third to Everest G. Smith, and one-third to Clare Howard and Marie Howard, husband and wife, appellants here. Defendants and cross-complainants, Howard and wife, appealed.
The only issue presented is whether the claimed $9,705.11 alleged to have been advanced and paid by appellants, in making the improvements, or some part of it, should be paid to them before the balance of the funds secured from the sale is distributed to the owners.
The property in question was in December, 1946, and January, 1947, deeded by the then owners to Earl T. Smith, now deceased, John Estep, Clare Howard and Ed Beck in equal parts. The deed to a part of the land described the grantees as a copartnership, doing business as Caldwell Sales & Commission Co. Thereafter on July 18, 1947, Beck and wife deeded their one-fourth interest to the other co-owners and each became the owner of an undivided one-third interest. Subsequent to July, 1947, Estep, Smith and appellants improved the property by the erection thereon of certain corrals, pens, livestock pavilions, sheds and other buildings, and commencing sometime in February, 1948, conducted a sales ring and auction business on the property as a copartnership, doing business as Caldwell Sales & Commission Co.
By two several instruments dated January 13, 1950, and March 21, 1950, Estep and wife contracted to sell and convey their interest to Everest G. Smith, one of the respondents here, and pursuant to said agreement did, on May 11, 1951, convey a one-third interest to him, and he assumed and agreed to pay one-third of the mortgage indebtedness to Gerhauser then outstanding. The contracts of sale from Estep and wife to Everest G. Smith were consented to by the remaining partners, namely Earl T. Smith and Clare Howard, and by an instrument in writing, dated April 7, 1950, said Earl T. Smith and Howard accepted into the firm of Caldwell Sales & Commission Co., the respondent Everest G. Smith, the consent reading as follows:
'We, Earl T. Smith and Clare Howard, two of the partners named in the hereto attached contract between John W. Estep and Orral G. Estep, husband and wife, and Everest G. Smith, each for himself, says:
'That he has read the attached contract and agrees thereto and accepts into the firm of Caldwell Sales & Commission Company Everest G. Smith, party of the second part to said contract, and agrees that the partnership from now and henceforth operating said business under the firm name and style of Caldwell Sales & Commission Company shall consist of said Earl T. Smith, Clare Howard and Everest G. Smith; provided the said Earl T. Smith and Clare Howard shall be entitled to have and receive each an equal one-third of the profits of said business and each shall be liable and responsible for an equal one-third of the losses of said business, if any there be, and that the said Everest G. Smith shall be entitled to have and receive one-third of the profits of said business and he shall hereafter be responsible for an equal one-third of the losses of said business; and the said business shall hereafter be conducted and maintained at the same place it has heretofore been conducted and maintained and in the same manner as heretofore conducted and maintained, except so far as altered and changed by the said contract hereto attached.
'Dated at Caldwell, Idaho, this 7th day of April, 1950.
Earl T. Smith
Clare Howard'
Earl T. Smith died October 1, 1951, and his interest in the property was by a decree dated May 4, 1953, distributed to Delpha R. Smith, one of the respondents here.
Appellants contend that on and between February 5, 1947 and May 18, 1949, they expended the sum of $9,705.11 in making the improvements on the partnership property for which expenditure an allowance should be made to them from the proceeds of the sale. In furtherance of their claim, Howard testified that after the property had been acquired by Estep, Smith and himself, he advanced money in payment of labor and material, evidenced by a series of checks, all signed by Clare Howard, Clerk, Clare Howard, which total the amount of his claim. One of the claimed advances dated February 5, 1947, was, he testified, advanced by him some five months before the present partners or their...
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