Tibbals v. Keys

• Decision Date: 17 October 1929
• Docket Number: 1556
• Citation: 40 Wyo. 524,281 P. 190
• Parties: TIBBALS v. KEYS, ET AL. [*]
• Court: Wyoming Supreme Court

281 P. 190

40 Wyo. 524

TIBBALS v. KEYS, ET AL. ^[*]

No. 1556

Supreme Court of Wyoming

October 17, 1929

APPEAL from the District Court, Fremont County; CYRUS O. BROWN Judge.

Action by B. M. Tibbals against Rollin W. Keys, et al., as executors of the will of John C. Spry, defendant. From a judgment in favor of defendants, plaintiff appeals.

Affirmed in part, reversed in part with directions.

The cause was submitted for the appellant on the brief of John J Spriggs of Lander, Wyoming.

The statute of limitations was not properly pleaded. U. S. F & G. Co. v. Parker, (Wyo.) 121 P. 533. The statute of limitations does not run against a trust, until there is a repudiation of the trust brought to the knowledge of the beneficiary; the contract of March 1, 1904 creates an acknowledged indebtedness of $ 17,500.00, and a lien upon specific property. Weltner v. Thurmond, 17 Wyo. 270, 28 Am. & Eng. Ency. L. (2d) 858. The parties agreed upon the principal sum due on March 1, 1904, and interest should run from that time under the statute. There was no repudiation of the trust; it was a continuing trust to be performed upon the sale of the property, and so interpreted by both parties. Rohrbaugh v. Mokler, 26 Wyo. 570. The question of limitations was raised by demurrer and ruled upon adverse to defendants. The point had no place in the answer. Savings Ass'n. v. Clause, 13 Wyo. 170. The contract undoubtedly drew interest under the statute. Trust Co. v. U.S. 270 U.S. 163, 4133 C. S. Spry reserved the right to fix the time and terms of sale; he rejected several offers; he thus kept Tibbals out of his money and interest should be allowed. Wyo. Ry. Co. v. Leiter, 25 Wyo. 291. The contract created a lien on the property. 17 R. C. L. 599-604, 27 R. C. L. 313. The contract was admitted. The account presented to the executors was not denied; it cannot be impeached except for fraud or mistake. Wiggans v. Burkham, 10 Wall 129; Standard Oil Co. v. Van Etten, 107 U.S. 325. The court erroneously refused to permit Tibbals to testify as to the books and accounts of the corporation. 28 R. C. L. 79. The agreement between Tibbals and Spry should be enforced as an express trust to the extent of Tibbals' claim for $ 17,500.00 with interest. In Re Divens Estate, 222 P. 106; Black Eagle Co. v. Convoy, 221 P. 425. The salary claims under the third and fourth causes of action should also be allowed.

For the respondents, there was a brief by A. H. Maxwell of Lander, Wyoming, and Wheaton Augur of Chicago, Ill., and oral argument by Mr. Augur and Mr. Maxwell.

Plaintiff's motion to strike portions of defendant's answer was properly overruled. Plaintiff was precluded under the statute from testifying against an executor. 5807 C. S. The point is not argued in plaintiff's brief and is thereafter waived. C. B. & Q. Ry. Co. v. Lampman, 104 P. 533; Phillips v. Brill, 95 P. 443; Boswell v. Bliler, 62 P. 350. Plaintiff cannot complain of court's action in receiving testimony of defendant's witnesses. The point is waived by failure to discuss or argue it in plaintiff's brief. See above authorities. The statute of limitations was properly pleaded. Plaintiff's theory that a trust was created under the March 1904 agreement is erroneous. Shuler v. Carl, 178 P. 539; Ennis v. Pullman, (Ill.) 46 N.E. 439; In Re Gardner, 103 N.Y. 533. Plaintiff's pleadings are insufficient. The March 1904 contract, required payment of sale money to be received from Ewing. It is not alleged that any was received. This is a necessary allegation. Smith v. Ross, et al., (Mich.) 16 N.W. 258; Lyman v. Co., 62 F. 891; Peasles v. Co., (Ore.) 135 P. 521; Frank v. Co., (Mont.) 135 P. 905; Montague v. Leonard, (Cal.) 67 P. 126; Palmer v. Guillow, (Mass.) 112 N.E. 493. The judgment is sustained by evidence. Plaintiff failed to introduce any competent evidence. Plaintiff is precluded from recovery by his laches. Williams v. Woodruff, (Colo.) 5 L. R. A. (N. S.) 986, 85 P. 90; Golden Eagle Mining Co. v. Imperator-Quilp Co., 161 P. 848, L. R. A. 1917C, 113; Sweet v. Lowry, (Minn.) 47 L. R. A. (N. S.) 451, 142 N.W. 882; Newman v. Newman, (W. Va.) 7 L. R. A. (N. S.) 370, 55 S.E. 377; Kleinclaus v. Dutard, (Cal.) 81 P. 516; Patterson v. Hewitt, 195 U.S. 310, 49 L.Ed. (U.S.) 214; McKnight v. Taylor, 11 L.Ed. (U.S.) 86, 1 Howard 160; Patterson v. Hewitt, 195 U.S. 309, 49 L.Ed. 214; Johnson v. Standard Mining Co., 148 U.S. 360, 37 L.Ed. 480; Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 23 L.Ed. 328. The case of Weltner v. Thurmond cited by plaintiff may be readily distinguished from the case at bar and does not seem to be in point. The contract was for payment from a particular fund. Plaintiff did not allege neglect or unreasonable refusal on the part of promisor to act and therefore has shown no right to recovery. 13 C. J. 631. Smith v. Ross, et al., (Mich.) 16 N.W. 258 and cases heretofore cited. The defense of laches is not dependent upon the statute of limitations. Williams v. Woodruff, (Colo.) 85 P. 90. Plaintiff's claim is stale. Golden Eagle Mining Co. v. Imperator-Quilp Co., 161 P. 848, L. R. A. 1917C, 113; Sweet v. Lowry, (Minn.) 47 L. R. A. (N. S.) 451. Equity will not enforce stale demands. Kleinclaus v. Dutard, (Calif.) 81 P. 516; Patterson v. Hewitt, supra. Where interest in property is of a speculative, or fluctuating character, a claimant is required to press his claim at the earliest possible time. This rule is applied with great strictness, in the case of mining property, since it is of a specially precarious nature and exposed to the utmost fluctuation in value. 21 C. J. 225. Patterson v. Hewitt, supra; Johnson v. Co., supra; Twin-Lick Oil Co. v. Marbury, supra. The judgment below should be affirmed.

For the appellant John J. Spriggs submitted the following authorities in the reply brief.

The defense of laches must be pleaded. Williams v. Woodruff, 5 L. R. A. (N. S.) 992 and note. Date of contract does not fix the running of the statute. Houghton v. Yocum, 274 P. 10. Intent of the parties as gathered from the instrument, controls. Stephen v. Patterson, 188 P. 132. Tibbals' claim for salary for services performed in paying for the property constitutes an independent claim. Interest is allowed both by statute and general law. King v. Ruchman, 24 N. J. Eq. 298.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

The suit is by B. N. Tibbals, plaintiff, against Rollin W. Keys and others, as executors of the will of John C. Spry, deceased, defendants.

On July 28, 1900, Tibbals and Spry signed a writing which hereafter will be called the contract of 1900. The writing recites that Spry has heretofore been the owner of certain named mining claims which have become the property of the Federal Gold Mining Company, a corporation; that Spry, in working and developing said claims, "has employed Tibbals as manager at fifty dollars per month and also one-tenth of the net profits accruing from said mines after payment of the original cost of said mines and the expenses of working the same." The contract then prescribes the method for computing the original cost and expenses of working the claims, and provides that the amount so computed shall be "deducted from the sale when made and that balance then left shall be considered the net profits of which said Tibbals is to have and receive one-tenth, the payment of said one-tenth to be made to him in the same manner and at the same time as said Spry receives payment for his shares."

The mining claims were not sold, but some time between 1900 and March, 1904, a so-called "working option" to buy the property was given to Thomas Ewing. On March 1, 1904, plaintiff and Spry signed another writing which we shall call the contract of 1904. It follows:

"WHEREAS John C. Spry of the City of Chicago, County of Cook and State of Illinois, and B. N. Tibbals, of South Pass City, Fremont County, Wyoming, have been engaged in various mining enterprises and especially the properties owned and controlled by the Federal Gold Mining Company, a corporation;

"AND WHEREAS the parties have this day made and accounted, one to the other, for the various expenses with relation to said property;

"AND WHEREAS said properties are now under contract to be sold to one Thomas Ewing, or his assigns or successors;

"NOW THEREFORE, For and in consideration of the sum of One Dollar and other good and valuable consideration, the receipt whereof is hereby acknowledged, paid by each party to the other, it is hereby mutually understood and agreed that the parties have this day agreed upon a full, complete and final adjustment of all matters appertaining to all mining or other interests, in which they are interested together, or in which either one of them owns and the other has any interest therein, or of the properties owned and controlled by the said Federal Gold Mining Company, a corporation organized under the laws of the State of Illinois, and also of the State of Wyoming, and that the said John C. Spry agrees to pay the said B. N. Tibbals and the said B. N. Tibbals agrees to accept the sum of $ 17,500, in full and complete satisfaction of all claims and demands of every kind and character which either of said parties may have against the other and of any and all interest in and to the properties, or any of them, owned and controlled by either of the parties hereto, or by the said Federal Gold Mining Company, it being understood that this is a complete and final and full satisfaction to date, all other contracts and agreements thereto, being hereby declared null and void and of no effect, said sum of $ 17,500, to be paid the said B. N. Tibbals, by said John C. Spry, as he receives his money from the said purchasers of said properties.

"Said B. N. Tibbals...