*1 MADRID, Appellant Louis S.
(Plaintiff below),
v. NORTON, Appellee
Edgar F. below).
(Defendant NORTON,
Edgar Appellant F.
(Defendant below), MADRID, Appellee
Louis S.
(Plaintiff below). 5041, 5042.
Nos.
Supreme Wyoming. Court of
June
H09 (argued), William H. Brown Claude Martin, Casper, appellant. W. for (argued), Casper, Houston G. Williams for appellee. J., RAPER,
Before C. and McCLIN- TOCK, THOMAS, ROONEY, JJ. ROSE RAPER, Chief Justice.
As the result of the dissolution of a ventures, the district court appellant awarded (cross-appellee) (hereinafter plaintiff plain- Louis S. Madrid tiff) judgment appellee against (cross-ap- (here- pellant) Edgar defendant F. Norton defendant) judgment upon a claim inafter total amount accounting for an plaintiff appeal in this IG.OSO^S.1 inadequate that sum and as- claims to be it: serts errors the trial court in that up that Norton live 1. Failed to demand fiduciary his rela- obligations tionship. recognize that the informa-
2. Failed to and Norton had tion assembled Madrid substantial value. is information
3. Held that confidential fiduciary rela- one the elements of a tion. relationship legal be-
4. Held consisted of tween Madrid and Norton series ventures. ADJUDGED, ORDERED, judgment pertinent part:
1. The IS “IT FURTHER upon claim Plaintiffs AND DECREED that ORDERED, ADJUDGED, “IT IS AND DE- money accounting, that Plaintiff have and nothing CREED that Plaintiff take judgment against the Defendant recover Complaint filed, herein insofar as he claims $2,016.75 the Fifield draft and the sum of $4,033.50 gas an interest in oil leases described draft, and that such for the Jenkins Complaint, judgment in Plaintiff’s and that accounting complete is and final.” against favor of Defendant and Plaintiff Complaint such demand in Plaintiff’s be and hereby entered. appeal the defendant admits his cross 5. Held that between vague $2,016.75 was so as to its and Norton on the “Fi- plaintiff that he owes terms as to be unenforceable. payment bonus but claims the field” 6. Found that Madrid and Norton $4,033.50 erroneously due judge found Boner, Reeder, share payment bonus plaintiff on the “Jenkins” *3 Waring they and leases after terminated and, addition, urges there should have in their venture. owing out of been credit $721.20 The defendant contends the true issues to any “Diamond Shamrock” be: plain- due defendant amounts found sup-
1. Was there sufficient evidence to tiff. port finding the trial court’s will affirm. We Madrid and Norton their rela- terminated particular While in case it adds to this 15, 1975, tionship January on or about opinion, findings of fact of length of the agreeing specific there were three judge separately stated and num- the trial they equal leases in which would share an interest, agreeing narrative and further that each will be used as the factual bered was to be free to obtain leases for his disposi- are critical to a parts since of them own account? accurately they tion of the case and because 2. Was the trial court correct in con- its testimony and exhibits. reflect the record relationship clusion of law that once the they as We include them also because serve between Madrid and Norton had termi- what the bench and bar of an illustration to nated, Norton was free to lease for his compe- professionally and we consider to be own account and was entitled to retain tently findings of fact. In a com- prepared the leases he did own obtain for his case, plex findings aid such well-formulated account? disposing appeal and in this court in support 3. Is there sufficient evidence to understanding precise questions finding the trial court’s of fact and at- why they presented to the trial court and tendant conclusion of law that the rela- While we must they were decided as were. tionship between Madrid and Norton was findings against pages the 474 verify the a series of ventures which ended on exhibits, transcript and 60 some defendant’s 15, 1975, January or about mutual by annotating in his counsel eased that task agreement agree- and that there was no finding of fact to the record. brief each ment between Madrid and commence a fourth venture? Plaintiff, Madrid, Defendant, “1. and 4. Was the trial court correct in conclud- Norton, experienced gas oil and are both ing from the alleged evidence that Their associa- landmen and lease brokers. to continue a when Ma- January in tion commenced vague between the was so as to be (authority acquire oil drid a ‘ticket’ had unenforceable in event? account, gas and at the and leases for the (i) Notwithstanding such conclusion on another) an expense, Haynie, from one court, part of the trial was the trial broker, in independent gas oil and court ulti- nevertheless correct its Wyoming. County, Sheridan mate decision grounds? on other another “2. Madrid used Norton and sup- Was there sufficient evidence to checking county to do the work of landman port findings the trial court’s and conclu- gas leases obtaining of oil and records and that, sions upon termination of the rela- private mineral owners in Sheridan tionship between Madrid and Norton on County. job completed within was 15, 1975, about previous Haynie. During boundaries established fiduciary relationship between them did project, County on this work Sheridan beyond continue the termination date there Norton obtained information to the leases involved case? project near the were other lands
mi they for oil gas, might unleased and and he sell company be- well it to said and lieved acquired that leases could be make profit. They such discussed matter lands prices (bonuses) agreed upon reasonable to embark second ven- delay agreed reasonable rentals. ture. They to limit the amount of acreage obtained, previously, to be “3. Madrid Norton discussed the leasing the area in which agreed they would, matter and attempted. joint account, attempt to obtain oil Norton, work, gas 15,000 doing again leases on the field approximately acres. obtained a second block agreed County of Sheridan approxi- Madrid to obtain acreage. $75,000 leases; again mately pay to ar- for the and at range money negotiate for the price per and to acre believed money sale. The from the of the first sale pay, acquisition the acreage put block was in Madrid’s own bank account 15,000 necessarily limited to about acres. made disbursements were later from it They agreed that Norton would check the *4 by Madrid. negotiate records and the leases and send bonuses; drafts on pay Madrid’s bank to the County “7. The second block of Sheridan Madrid arrange approximate would acreage Michigan-Wisconsin sold to was $75,000 this, to do and Madrid would en- Pipeline Company immediately. almost gage trying in to sell the block to someone. Again, money placed was in Madrid’s They agreed to profits divide whatever account. were equally, realized both to money as and Having “8. two successfully obtained overriding royalties. reserved This was the acreage, again having blocks of sold the and agreement extent of their at that time. inventory leases, entire Madrid and Nor- “4. Norton obtained the block of acre- attempt together ton put decided to to age agreed, as and sent to drafts Madrid for County acreage— third block of Sheridan payment. thirty-day drafts were again acreage again in in an limited and and, prior dates, drafts to the due agreed Madrid obtain- county. area of Norton agreement made an Marty block, with constituting one Fried- ed as leases a third man pay However, to agreed. drafts when due. Madrid was this time agreement Friedman, that not in sale of the making was successful a fast sale block, companies block, although many third were would be repaid moneys he advanced, solicited him. and three would then share equally any profits made on the “9. had a third Madrid and Norton now sale. The block of first leases was sold to inventory acreage substantial in- and a Shamrock, Diamond and the costs, acreage acquisition vestment in performed. Madrid and Norton had no They readily was not saleable. discussed leases, more having sold entire first pack- steps to third to be taken make their block to Diamond Shamrock. After age buyers. prospective more attractive to block, first longer participated Friedman no attempt They agreed they go to should subsequent Madrid and Norton in ac- County, pay into more for some Converse tivities. leases, County put better the Converse third with the Sheri- into the block “5. negotiating While sale of the County dan offer such block for leases and block, first offer an to sell made County They sale. examined the Converse Michigan-Wisconsin Pipeline Company. public and used RIMC-0 POM- records However, company agree not would maps CO determine which leases the amount overriding royalty Madrid purchased by expiring. maps may These reserve, proposed to-wit, Norton 6V4 mineral anyone they show price, for a percent. believed, Madrid and Norton ownership on them. information Michigan-Wisconsin’s expressed interest area, they together if in Converse put selecting could “10. the area attempt leasing, second block County acreage, County of Sheridan within following final Madrid and tried to select lands in started to deteriorate complaining about Ma- vicinity of an ‘axis’ which was well sale. Norton handling money, and Madrid people drid’s known to oil and was delineated objected secretary coming to his public records, to Norton’s geological particularly the through files. Conse- going office and Geological Survey United States records. meeting in quently, Norton asked for a dealing In none of their either place Denver with Madrid and this took knowledge or Norton ever have to or access January They discussed or about technical, data, geological engineering or arisen, briefly the difficulties which had particular suspected pool and no or of oil any associa- agreed and both to terminate gas except may was known to them together. at one time dis- They tion general been of knowledge in the oil busi- becoming partners, cussed Also, ness. Madrid and Norton never drew so, having do each done work for himself up any map, any agreement upon, nor made participation by during with no other specific nor delineated a area in which to period question. They concentrate simply efforts. tried, least, County in Converse at to secure meeting, “15. At the acreage production near known areas of asso- having agreed to terminate their interest. ciation, specifically dis- Madrid and Norton War- cussed what was to be done about the acquire Madrid and Norton did ing, Boner-Schlichting and Reeder leases. County, leases in paying Converse more for They agreed were close to obtain- them than County acreage. for the Sheridan ing these leases and that They packaged the leases in the two coun- *5 could, they ahead and them if sell obtain together ties and this time were successful them, They profits equally. and divide the selling in the third block to Diamond Sham- any They did not discuss other leases. 29,1974. rock on October Norton continued forward, except agreed that date that from doing some title work on this block of leases leases, they for three named County in Converse during and November is, thing’; ‘each his own each would do December part 1974 and the fore of Janu- account pursue be free to leases for his own ary They again were once out of at his own risk. and leases. Waring “16. Norton later did obtain the “12. No further by was made lease, a valuable lease which was Madrid and Norton to leasing commence discovery. Spearhead the area of the Ranch period fourth block. There followed a of assigned interest to Madrid He a one-half relative inactivity part on the of Madrid they sold the lease and divided They and Norton. decided to send out in- profits, including overriding royalty, equal- quiries to some prospective additional les- ly. Boner-Schlichting Madrid obtained sors, price with a paid much below that for leases. He tendered to Norton Reeder County Converse leases did obtain. by a one-half interest letter dated March unsuccessful, entirely This was and no fol- 19, 1975, advising without Norton of low-up attempted by was party. then either paid any bonus of the terms Bon- had, “13. during Madrid and Norton er-Schlichting prior filing lease. Just activities, leasing made contact with lessors of by by Madrid of letter this action respect leases, prospective to three 1, 1976, March Madrid tendered to Norton by lease, known Waring them as the one-half interest in the Reeder lease lease, Boner-Schlichting and the Reeder year prevoiusly. acquired he had almost They lease. had not obtained such leases at 4, was filed on March This action [sic]. the time of the sale of the third block and 1976, against Both let- by Madrid Norton. did not package include them in the sold to acceptance by placed ters a deadline for Diamond Shamrock in October 1974. letters, these Norton. When he received “14. Personal no respond relations between Madrid as he wanted Norton did not Norton, employees, between their with Madrid. more do
1H3 Following acquisi- “20. With meet- to Norton’s Denver, ing in Madrid and Norton both tion of the Sullivan had Norton acquiring interested in leases in Con- county checked the records and had ob- County, verse for each his own account. an existing served that lease had a termina- immediately Norton went to Converse tion upcoming date when he was in Con- County purpose. himself for Madrid County verse in October of 1974. This lease period time waited and then sent a many was he and had one of Madrid landman, him, by hired into Converse Coun- discovered from their examinations. Nor- ty to obtain leases for Madrid. Madrid also Sullivan, Joseph attorney, ton wrote instructed the landman to observe what Douglas, Wyoming, at October doing. attempt Norton was Madrid’s was having been referred to Sullivan highly and in unsuccessful and the Wyoming Bank Casper, National fell landman out found because Madrid out depository expiring bank on the re- named had landman taken a lease for corded lease. Mr. answered Sullivan himself which and felt Madrid wanted letter on him October and advised should been taken for Madrid. Macken, of the death of Cecilia the lessor hand, “18. On the other Norton suc- expiring named in the lease. had Norton in acquiring gas cessful several oil and leas- land, part offered to lease a of Macken es for himself. These are described in Ex- it, 18, 1975, all of a letter October Complaint. hibit ‘A’ to Madrid’s From Jan- bonus, per acre the re- $25 15, 1975, uary any never made de- price he duced and Madrid had any mand on Norton interest required pay offer. had been more They leases, these nor was there discussion of than such twice amount for the Converse them pro- between Madrid and until County acquire. obtained, duction was in November them, one of the so-called ‘Sullivan’ lease. “21. Norton was refused Sullivan Madrid knew in March 1975 that Norton Will de- advised the Macken had taken the Sullivan lease. In Madrid’s vised the mineral interests decedent letter March which he sent to percent Margaret, to Sullivan’s wife *6 conferring Martin, Norton after with Mr. McGovern, percent and 20 to Rev. Terence made, one his attorneys Casper, of he for percent Woods. to Rev. Colm Sullivan time, the first some reference other leas- devisees, wife, Margaret, his on of all behalf by saying, es T appreciate your would re- the refused deal on a new lease until viewing your if files determine the same Nothing fur- Macken was closed. Estate possibility exists relative to leases ther with occurred Sullivan you might acquired which and that a 15, January 1975, when lease until reciprocal arrangement be in order associ- their Madrid and Norton terminated by original virtue of ation. existed between us.’ At the time of this 29, 1975, some January “22. On 1, letter, March 1976 knew Madrid competition Compa Petroleum from Woods production there was on the lease Sullivan lessee, ny, prior negotiated Norton and that Norton had obtained and the owners, Margaret lease from mineral other leases described Exhibit ‘A’ to Sullivan, Woods. Complaint and Rev. days three Rev. McGovern filed later. by Norton original October 1974 offer “19. Madrid no keep made real effort to ia 23, Town included the E of Section 15, in contact with January Norton after North, ship lease Range 40 74 West. His They purpose met in Denver for the hole in dry card that he knew of a shows settling of moneys their account of SE n 30, Township same of Section owed, but there was no with re- discussion 12,951 feet, card Range, and the drilled to spect by party leases taken either while knew that his own name. shows that Norton accounting sep- will be only the arately expiring discussed hereinafter. Macken lease covered 1114 23,
E ½ of Section also the of Exhibit ‘B’ in evidence hand- SE ¼ shows some 31, Section 30 and the NE ¼ of Section typewritten written entries Madrid’s entered a ‘disregard note thereon to Secs. $22,663.83, agreed figure sheet. The 30 & 31.’ negotiated When Norton by and this was owed Norton Ma- amount lease, required by Sullivan he was the les drid. wrote a check in the Norton Madrid sors to acreage, include all of and not $22,663.83 72) (Exhibit amount of contain- just the E ½ of 23. He also Section had to ing Payment.’ Also notation ‘Final apd pay acre, per bonus of to increase $55 written on the check were certain lease royalty percent landowner’s to 14 from numbers of for which Madrid had not leases commonly percent. offered 12½ Norton payment by received Diamond Shamrock did not consider the lease Sullivan the sale of the third and block. final as valuable Waring as the which he “25. Norton admitted on the record that and Madrid shared January under their $2,016.75 obligated pay he is Madrid agreement. 1975 termination holding Madrid from “23. productive, While not the other the Fifield draft. by 15, January obtained Norton after obligated pay “26. Norton is 1975, were also included in Madrid’s suit $4,033.50 repayment written of a check against covering Norton. Two leases personal pur- on Madrid’s account for the North, S ½ of Township Section Range 36 pose acquiring the Jenkins This lease. West, 73 from Paul Grosch and wife and amount was not accounted for in the de- Norton, Herman Hersch and wife to suf- accounting tailed between Madrid and Nor- fered a by failure of title prior reason of ton in late November 1975. recordation of a conflicting lease. The Har- less and Tonkinson leases in the ¼ drilling SE The so-called Rohres ven- Section NE n Township Section 39 ture in partici- which Madrid and Norton North, West, Range 74 by secured pated transaction, separate, was a isolated 15, 1975, Norton after January on new in way no connected with the transactions Also, terms made Norton. the Bolley bearing recited hereinabove and it has no Phillips covering Lots 3 and thereon.” ¼, S ½ NW SW ¼ of Township Section judge explained What the trial did is best North, West, Range 74 were dated after by setting commendably comprehen- out his 15, 1975, January paid and were for in sive of law conclusions distilled from March 1975 Norton. The Ulrich lease on foregoing statement of As will be facts. SW Vi NW ¼ E Section ½ NE ¼ seen, the conclusions do include a combina- North, Township Section Range tion of ultimate facts as well as conclusions West, 31, 1975, dated and was of law and painstaking analyses are paid Norton in March 1975. The respect. noting useful to us in that After Savage lease covering NW Vi NE ¼ of *7 jurisdiction paragraph the the court in 21, Township North, Section Range “1”, they go on to that: conclude West, originally negotiated was for Nor- ton in November and December of 1974. This ultimately lease was January obtained upon foregoing Findings “2. Based the
27, 1975, for a bonus more
previously
than
Fact,
legal
the Court concludes that
offered and for an excess
roy-
landowner’s
relationships between Madrid and Norton
alty. All of these leases are in three differ-
joint
Wy
consisted of a series of
ventures.
townships
ent
from the Sullivan lease.
Weston,
oming Indiana Oil & Gas Co. v.
et
al.,
526],
Wyo.
(Wyo.1932);
“24. Madrid and
[43
Norton met in Denver
Hoge
423],
v. George, Wyo.
on an
1U5
parties agreed
which the
approxi
to,
would be
agreed
did,
met and
terminate
15,000
mately
agreed upon
acres and
further
They
association.
had previously
general
leasing.
area of
The first
discussed becoming partners,
ended
rather
than
upon
joint
venturers,
sale of the entire block to Dia
but neither party agreed to
mond Shamrock.
a partnership arrangement.
This venture also in
joint venturer,
volved a third
Friedman.
date,
“6. As of the
par-
termination
Upon
completion
venture,
of such
ties
acquiring
were close to
three additional
Friedman
longer
was no
associated with the
leases,
Waring,
Boner-Schlichting, and
parties
in subsequent
joint
ventures.
They
Reeder.
specifically agreed
to
(Bracketed
added.)
material
jointly
ahead
acquire
these leases. This
done,
“The
joint
assigned
second
agreed
venture was
Madrid a
one-half
Waring.
interest
in the
parties.
advance
It consist-
acquired the Boner-Schlichting and Reeder
acquisition
ed of the
of a second block of
leases. He tendered an interest
in the first
leases in
County, again
Sheridan
in a block
to Norton fairly promptly, but held the
15,000
20,000
of approximately
acres and
year
second for almost a
before he tendered
disignated
area,
in a
to be sold as soon
[sic]
to Norton an
Signif-
interest in the second.
possible
as
after being obtained. This ven-
icantly,
the latter
tender was
made
ture ended when all the leases in the second
days
three
prior
filing
to Madrid’s
of this
block were
Michigan-Wisconsin
sold to
action to recover interests in other leases
Pipeline Company.
parties
had no
15, 1975,
taken
January
Norton after
more leases after such sale.
and after Madrid had conferred with one of
“The
joint
third
again
venture was
attorneys.
agreed upon in advance as to locale and
Upon termination,
again
acquired
to be
resale.
size —
1975,of the association between Madrid and
saleable,
When not
readily
parties
Norton,
joint
whether
were still
ven-
acquire
some additional leases in
not,
pursue
turers or
each was free to
leas-
County
done,
Converse
and when
the third
ing activities for his own account. The
Shamrock,
block was sold to Diamond
leav-
Supreme
Kansas,
gas
Court
an oil and
ing
parties again
without
leases.
case,
(citing
stated the rule to be
46 Am.
purposes
“The
of the three
ventures
Jur.2d,
Ventures,
pp.
75):
Joint
§
accomplished
agreed upon
by the
‘Obviously
recovery by
there can be no
parties.
property acquired by
one coventurer for
“3. There
was no
between
another after the
venture has been
parties
commence a fourth
ven-
completely
Clearly,
terminated
.
.
.
ture,
prior
as was done
to commencement
where a
been
has
formed
prior
three
parties
ventures. The
acquisition, ownership,
develop
for the
or
again had sold all
the leases
had ac-
property,
ment of certain
the fi
defined
quired in the third venture and it was com-
duciary relationship
not
does
forbid
pleted, except for some title curative work
acquisition, ownership,
development by
which was later done.
parties
one
for his own benefit of
“4. The
agree
attempt
property
enterprise
embraced
acquisition of some additional leases in
scope.’ Foley
[sic],
Con-
and outside its
et a.
verse County by sending
al.,
prosepc-
Phillips,
letters to
et
508 P.2d
[979-980]
lessors,
tive
price
at a
(Kan.1973) (Bracketed
added.)
which was half
[sic]
material
*8
or less than
price
half of the
they
paid
“8. The evidence taken as a whole has
for the
County
Converse
put
leases
in the
failed to
contention that
establish Madrid’s
block,
third
but were not successful in ob-
joint
encompassed
venture
the Powder
taining any leases in this fashion.
interest,
River
the area of
Basin as
On or
January
established,
about
or
after
even if
it
terminated on
period
15,1975.
relative inactivity,
parties
January
Plaintiff has failed
about
“Contrariwise,
joint
parties admit
proof
to sustain the burden of
that the
both
any
venture
as to
continued
said date
terminate their relation-
intended to
par-
but the three named
which the
leases
point,
ship, whatever it was at
specifically agreed
subject
ties
would
(retaining
separate ways
their
division
interest between them. Plain-
acquisi-
prospects
three named leases or
tiff testified that he mentioned the fact
tion).
having agreed specifically
Without
might
parties
that there
be other leases the
leasing prospects; without hav-
upon other
should talk
Defendant denied such
about.
area;
having
ing agreed upon an
without
may,
conversation. Be that
it was
upon prices and other terms of leas-
agreed
admitted
Plaintiff that no further dis-
es;
financing
any agreement for
without
place,
cussion did take
and he made little or
blocks;
or
and with no
any further leases
attempt
any
no
to assert
interest
in any
having
place ex-
further conferences
taken
mentioned,
other than the three
from
accounting,
cept
up
money
wind
15, 1975,
1, 1976,
until March
at
agreement
there is no
to enforce. It should
which time
general
he made a rather
refer-
three
parties,
be observed that the
on the
ence to other leases in a letter to Defend-
ventures,
difficulty in
previous
had no
days
ant. He did
three
this
before he
conferring
arriving
agreement
at
on all
brought suit. He had known of Norton’s
prior
matters
commencement of
these
leasing
time,
activities for some
and had
termination,
they agreed
work. Once
known since March 1975 that Norton had
actions,
inactions,
parties
of both
or
obtained the
Yet
Sullivan lease.
subsequent
entirely
to termination are
con-
made no claim or demand whatever as to an
having
been no further
sistent
there
any
acquired by
interest in
Norton
brought.
until this suit was
the leases de-
agreement with
complaint.
scribed in Plaintiff’s
significant
“It is most
that Madrid’s de-
mands
after it
arose
was known that the
fiduciary
that a
“10. Madrid contends
productive. Up
Sullivan lease had become
termina-
relationship nevertheless survived
occurred,
until this
particu-
evidenced no
certain infor-
tion because Norton obtained
lar interest in Norton’s activities.
mation while associated with Madrid
“9. As to Madrid’s contention that the
ventures,
three
which Norton later used to
continued,
venture
at best Plaintiff is
advantage
Unlike other
at a later date.
asking
alleged
the Court to enforce an
the fidu-
cases where courts have extended
agreement
vague
that is so
as to terms as to
law, here
ciary relationship as a matter of
be unenforceable. In those instances where
there was no confidential
information
courts have enforced
agree-
specific geological
obtained. There was no
ments,
activities,
gas leasing
as to oil and
Madrid or Nor-
information known to either
the Plaintiff
specific
established a
area of
ton. The information
had was obtain-
interest, the length
agreement,
of term of
records,
by anyone
public
able
from the
or
agreed upon.
various items
maps
any
which were on sale to
mem-
courts, however, will not make a contract
public.
they agreed to
ber of the
When
themselves,
for the
they,
part company, they both had information
Phillips Hamilton,
not made.
Wyo.
[17
obtained within the time frame of
41,]
(Wyo.1908).
1H7
employ
try
judge.
in his
to obtain other leases.
district
There are
appellate
settled
choice,
follow,
apparently
concepts
This was
a bad
as a
which we
all for the most
dispute arose
part
party prevailing
as to whether
the landman
favorable to the
took a lease for himself which
appealing party
heavy
Madrid want-
trial court. An
has a
event,
ed.
In
Norton should not be
burden to overcome. We must assume that
penalized just
promptly
because he
went to
party
the evidence in favor of the successful
true,
work.
entirely
is
leave out of consideration
party
the evidence of the unsuccessful
reasons,
foregoing
“For the
the Court
give
conflicts with it and
the evidence of
fiduciary
holds that the
relationship created
party every
the successful
favorable infer-
parties
between the
to those
ence
may reasonably
fairly
which
and
be
successfully completed
ventures
Jelly Dabney, Wyo.1978,
drawn from it.
v.
ventures,
not
beyond those
but existed
624;
622,
581 P.2d
v.
Laramie Rivers Co.
only within them since all were defined and
Co.,
1241,
Wyo.1977,
Pioneer
565
Canal
P.2d
agreed upon
relationship
and since the
be-
1243-44;
Wyoming Digest, Appeal
West’s
tween the
by
was terminated
case,
& Error
agreement.
special findings
there were
of fact which
“11. As
right
to Madrid’s assertion of a
must
liberally
favorably
be construed
equal
to an
share with
the oil and
judgment.
presume
to the
We
gas leases described in Plaintiff’s Com-
right
findings
are
of the trial
and where the
plaint,
the Court holds that Plaintiff has
court are not
inconsistent with the evi-
failed to
proof,
sustain the burden of
dence,
erroneous,
clearly
contrary
law,
all the evidence and the
evidence,
great weight
will
of the
generally
Court finds
in favor of Defend-
Manage-
appeal.
be disturbed on
Diamond
ant, Norton,
Plaintiff, Madrid,
against
Corp.
Empire
Corp.,
ment
v.
594 P.2d
Gas
judgment
will
accordingly.
be entered
(1979);
Haynie, Wyo.1976,
964
LeBar v.
552
“12.
owing
Norton admitted
Madrid
Moreover,
judge
the trial
P.2d
1110.
$2,016.75, being one-half
return bo-
present
and observed at first hand
lease,
nus offered
him for the ‘Fifield’
expressions
the witnesses.
demeanor and
which did not mature into a firm
forget
when we examine
We must not
which
pay
Norton must
Madrid.
transcript of testimo-
the cold words of the
ny, we do not have the benefit of how
$4,033.50,
“13.
pay
Norton must
judge sees
hears the witness —the
paid
amount
a check issued
voice,
pitch
changes, the move-
facial
personal
Madrid’s
pur-
account for the
may
tell a
ment in the witness —all of
pose of acquiring the Jenkins lease.
separate
credence. The
story,
given
to be
“14. Defendant
has withdrawn
his
is with
preponderates
conclusion of what
Counterclaim in this case.
Brown, Wyo.1965,
the trier of fact. Koch v.
Judgment
shall be ordered in con-
Credibility
is
2. As said in
care-
voice
fully thought-out
A
185 Or.
answer,
though
plaintiff,
Father Terence
1955,
Nor
disa
on his own account while the venture is day anything “From that forward as to ongoing; and does, if he he must account. new develop my that I own could Hunter, v. Martin 179 Kan. anything develop new he could P.2d 153. McCartney See also own, McKen separate that we would our drick, 1956, 164; 226 Miss. ways.” So.2d roy- equal Marga- paid share of the landowner’s amount would have been 40% 14% alty $4,000 Sullivan, per nets receiving Father McGovern about ret Woods Father 20% paid by month. His share of the bonus defend- or half the amount of the other two owners. $8,000.00. ant came to about That means an
1H9 hand, plaintiff. the other the defendant’s ver- contract sued on rests on the On sion was that: Negros-Philippine Black & Yates v. Lumber Co., 1924, Wyo. 231 P. 37 A.L.R. any relationship
“We terminated we had *11 * * * plain The same burden rests on the buying in there in but at rate, prove whichever date it was we terminat- tiff to its terms. 17A C.J.S. Con any relationship joint-venture agreement ed tracts A anything we had on 579b. § eminently conduct, that we didn’t feel was may surrounding be inferred from [sic] forthcoming.” circumstances and transactions between
parties.
Elevator Ma
True v. Hi-Plains
Inc.,
chinery,
supra. The “termination”
well, Ed,
says,
“A. He
[Norton-De-
joint
agreement
part
became a
of the total
working
things
we are
on some
fendant]
parties,
venture
of the
which if
talk
let’s
about those and see what
form,
would
written
dissolution
because,
got going,
we have
says,
he
I
joint
pertaining
clause. The law
adven
intend to lease in the same
area which
applied
provisions
then
only
tures
to not
its
we have been involved in before.
IAnd
ongoing,
part
while
also
but
to that
said, fine,
same,
said,
I will do the
agreement dealing with its dissolution.
you
what
got going
in here —I can’t
words,
recall
exact
the intent
proof
The burden
as to a
me,
both with him and with
since we
joint
particular
fact in a suit between
ad
talking
leasing
immediately
about
venturers,
party
rests on the
who affirma
forward,
in the same area from that date
tively alleges
or claims
existence of
was,
know,
you
things
what
do we have
12h.
fact.
48
Joint Adventures §
C.J.S.
working
that we are
on that
look emmi-
always
question
It is
to be deter
nent
to us that we are
in.
involved
[sic]
evidence,
joint
whether a
mined from the
“Q.
you
And what
talk
Corp. v.
venture exists. Producers Finance
about?
Lee, 1942,
326,
191 Okl.
supra; Soto, 1959, West v. 85 Ariz. 153; plausible, theory of one of the is Campagna P.2d Ry. v. Market Street Co., against par 304, 149 281; when the trial court finds 24 Cal.2d P.2d Tran Equipment ty, sit it is a law that if the case is tried Dyonisio, Co. rule of v. 478; jury, and if Taquena Colo. 391 P.2d before the court without a v. Bob Co., Okl.1973, 539; rationally Vale Painting different conclusions can be 507 P.2d Joseph Co., evidence, v. Donover then the case is 9th Cir. 261 drawn from the 812; Digest System, F.2d West’s Joint Ad one for the trial court’s determination. ventures, Williams, proof supra. The burden of of a for the Stearns Counsel losing party prone to overlook nothing There was imminent about judge, advantage us, who has an over plaintiff Sullivan lease when and defendant may properly altogether take an different separate ways. decided The last view of the testimony than does counsel. contacts had been made in October and Eblen, Eblen v. supra. November, early period 1974. For a in No- December, vember and the defendant was simply
This is
a case where the trial
judge
area,
having
more satisfied with
not even in
gone
the evidence
to Denver
of the defendant
than that
plaintiff,
to tend to his own land office which was
both
toas
the contract terms and its termi
July previous
established the
done
some
nothing
nation. We find
to reflect that the
traveling.
vacation
had told
Sullivans
findings of the trial court were inconsistent
defendant
not even talk
about
*12
evidence,
with the
contrary
great
to the
lease until
the Macken Estate was closed.
weight
evidence,
of the
clearly
or
erroneous. He did not know that
the Macken Estate
The evidence is clear that at the date of
lands,
was closed and that
which were
only
termination
three leases were dis
by
covered
a lease to Woods Petroleum
Reeder,
Waring
Boner and
un
cussed—
—as
Company, had been set over to Mrs. Sulli-
finished business of the
venture. No
van and the
way
other devisees until on his
discussed,
others were thereafter
although
mid-January
back to Denver from the
ter-
they
subsequently
did
get together to settle
meeting
plaintiff.
mination
with
Even
up their
plaintiff
accounts. The
made no
then he could not deal with the Sullivans
demand on the defendant
to
because
outstanding
of the
to
lease Woods
any other lease until he filed the action here
Petroleum. According
deposition
appeal.4
It was not until the Macken
Sullivan,
Mrs.
began
when defendant
Estate
by
devised
the Macken Will to
seriously negotiate
Margaret
with Joe and
Mrs. Sullivan and the
priests,
two Catholic
5
productive
became
January 29, 1975,
on or about
plaintiff
they
Sullivan
concluded
ought
to have an interest
in it. Justice
would not
ahead until Wood Petroleum
Potter had some observations about those
finally refused to meet
the defendant’s
who come in after oil is discovered. Courts
price
per
plus
net acre
a
$55.00
14%
look with
disfavor
the claims of those
royalty
landowner’s
rather
than the usual
who
awaiting
lie idle
the results of develop
12½%.
ment.
waiting
may
years, months,
There were other features of the Sullivan
days,
or
depending on the circumstances.
lease which could
it a
label
new transaction.
(
There
injustice
is an inherent
pur
in one
When defendant’s initial offer of
an
$25.00
portedly holding right
to assert an owner
acre
October, 1974,
was made in
he was
ship in property to voluntarily await
only interested in one section of land. To
propitious
decide,
event and then
when the
oilman,
an
there were unattractive
danger
features
which has been at the risk of anoth
over,
er is
about the other
two sections of land
come in and
in that
claim a share of
profits.
Rocky
Merrill v.
by
dry
Mountain Cat
offset
hole and there
Co., 1919,
tle
Wyo.
H21
required
all
not receive that amount in the settlement.
finally was
to take
three sec-
We, therefore,
is no
conclude that
there
tions.
a credit of
merit
defendant’s claim of
dispute
principal
involves
$4,033.50.
The other
in
the Sullivan lease.6
leases
hand,
judge appar-
On the other
plaintiff
appear
an interest
claims
ently
plaintiff’s admission
overlooked
particular
impression
have no
value. The
is
testimony
is
pleadings and
that defendant
are
left
included
effect
entitled to a credit
$721.20.
appearance
plain
add an
of substance to
claim,
although
tiff’s
could at
the district
except
Affirmed
remanded to
time become
some
marketable.
judg-
court with directions
amend
plaintiff by
ment in
reduction
favor of
recovery by joint
can be
There
no
ven-
of $721.20.
amount thereof
sum
property acquired
turer
the other
completely
has been
ROSE, Justice, dissenting
part
event,
fiduciary
terminated.
concurring
part, with
McCLIN-
whom
relationship no
and an
longer
acquisi
exists
TOCK, Justice, joins.
tion after
termination
outside the
scope
Foley
venture.
v. Phil
ground
I will
on the
that Norton
dissent
lips,
P.2d
Kan.
975. The
satisfactorily carry
his burden
*13
plaintiff
was on
to show
he
burden
the
that
proving
liquidation agreement
the oral
—as
joint
relationship
a
venture
which enti
obligation
it was his
to do.
fiduciary
tled him to the
a
rela
fruits of
to
applicable
is
Partnership
generally
law
tionship
theory
joint
the
of
venture.
Holler,
joint
v.
ventures. P & M Cattle Co.
1963,
Scott,
Opco, Inc. v.
10th Cir.
321 F.2d Wyo.,
solved but was not then is winding up part- joint a liquidation or of the fense of an of ad- abandonment ” concerned, nership are McCartney with which we here . venture. . . “winding McKendrick, up” and the was to be effected 116 Miss. 85 So.2d according to the of the (1956). intent as gleaned expressions, from their actions standard of These cases state correct by operation of law. necessary establish termination of proof of proof nature the burden of re- joint relationship A fiduciary adventure. quired winding up to effect an oral of a until among exists adventurers scantily adventure is dealt liquidation. In the interests moment Certainly, law. who burden with him among partners dealings promoting honest asserts the terms and conditions creating is nec- the sort trust which liquidated. the adventure will be is said It essary progress complex economic Papierz, in Hurst v. Ill.App.2d 262 society, imposes the law of duties number (1970): N.E.2d governing the of fiduciar- and rules conduct “Ordinarily, in an action between only proscribe These ma- activity ies.
adventurers, proof to a se, burden proscribe activity also lum but certain fact party rests on the who af- wrongful or activity conducive firmatively alleges claims ex- wrongful appearance activity. For ex- n > ists, in respect true such only enjoined ample, trustee is not from as the matters existence of a money adven- stealing the benefi- trust’s ture, venture, the termination of the enjoined placing ciary, he is also money beneficiary’s with his own in a account, common bank even if he intends to question, however, becomes more acute keep scrupulous account of how much be- when we are assigned inquiring the task of longs each. into factual must circumstances which *14 present be say before will courts be able to Similarly, necessary, it is in order to avoid that the proof burden of has been dis- appearance among or the of fraud fraud charged. Is it party sufficient that the clear, partners, unequivo- that a burden of asserting the liquidation agree- terms of the joint proof imposed cal and decisive be charged ment satisfying be with the ordi- an enti- adventurer who claims nary proof which, though burden of even of tling exploitation him to exclusive a busi- weight of the evidence almost bal- opportunity he as a ness has come anced, permit a fact-finder to reach joint fruit venture. the conclusion that termination has been mid-January Norton testified that he effected? Or is the burden heavier than with that met Madrid to discuss friction had that? developed the two them and between One court has commented the sub- that Madrid offered to “terminate ar- ject of abandoning adventure: now,” rangement right whereupon we have “Abandonment is a [of venture] agreed. Except particular Norton for three voluntary thing, there must be a identified, leases which they each is clear clear, unequivocal decisive act point that this is the in time when dissolu- party to constitute in re abandonment place. tion of their This association took spect right (Citations). of a secured. that conversation reveals each adven- ” . Norman, . McIver v. Or. contemplated pursuing turer new leases for (1949). 213 P.2d [Bracketed County, his own account in the Converse parenthetical matter supplied] area, including Wyoming, the other without
Another court has said: During in such future endeavors. this con- “ . . opinion, agreed .In continue partners our there is no versation the to ‘clear, unequivocal and decisive with to three respect evidence’ their record, contained in leases, this such as is re- lease was named Sullivan
H23 agreement.) breath, not the three re nation In the same one of mentioned. With however, spect remaining part business that Norton concedes Madrid was asking him liquidation agreement gets concerning any for information nership, possibilities partner- pretty fuzzy, with which the terms which are far ship “clear, then unequivocal from involved and and decisive.” Norman, imminent. McI Norton also testified that he ver v. supra; McKendrick, didn’t think there was much left be said McCartney supra. v. they three named discussed the leases. says that Norton intention was to Arguably, means that Norton didn’t this partnership respect terminate the and, consider the lease imminent Sullivan everything that wasn’t imminent. this therefore, did disclose Madrid regard, part Norton’s of the dialogue at the pertinent information with to it. trial went like this: question “yes” Norton answers to a also well, says, Ed, “A He we are [Madrid] Madrid’s counsel to effect working things on some and let’s talk ways separate rela- about got those and see what we have tive anything except the three named because, going, says, he I intend to lease But, course, leases. this answer has to in the same area in which we have been in the context that Norton considered said, fine, involved before. And I I had told three Madrid that discussed same, said, will do the and he what have leases, one was working of which Madrid you got going —I in here can’t recall on, only pieces were the of business that words, exact the intent but both with him were imminent. me, and with we were talking since about two named is—were question But the leasing immediately in the same area imminent business only pieces of leases the forward, was, know, from that date you which, Norton partnership, during things what we have do we are says, in the area? pursuing been working look emminent to us [sic] (in prove this were, has to yes that we are in.” [Emphasis involved “clear, unequivocal and my judgment) bracketed supplied] matter is es because evidence decisive” interprets the conversation as fol- parties’ contention sential lows: terms of the concerning the had met minds ‘Q: Okay, you “A advise him that v. McCartney arrangements. liquidation you intended to lease for your own Norman, McIver McKendrick, supra; and account in the Powder River Basin after supra. that? “ a number sets out majority opinion *15 day ‘A: From that forward as to that the Sulli- the conclusion of reasons for anything new that I develop my could on in mid-Janu- not imminent van lease was anything own and new that he de- could January 29 signed was ary, though even own, velop on his go that we our would ” begun lease had negotiations for the separate (Redirect ways.’ examination backdrop a Against previous the October. reading Mr. Brown —Madrid from Ma- deci- clear, unequivocal and requires drid deposition). agreement of oral the sive evidence that me, For significant it is that ad- Norton exclude the to mid-January was intended mits sought that Madrid the information fairly which could those lease from Sullivan (which logically was within Norton’s knowl- sup- imminent, not find I do be considered edge) to what partnership that majority’s statement port for the business Norton had been developing in the area question. nothing in imminent about The record was shows that “[t]here plaintiff when de- responded just Norton Sullivan that he had two leas- es, way. fendant each own which did not decided include Sullivan lease. (Madrid The last had been made in Octo- contacts working had been on the third ” ber, . early 1974 and November. . lease specifically excluded termi- from the 1,1974, got from the time in when he On when adven- first October October effect, eventually in Joe examining ture touch with Sullivan and was in Norton was County obtained the lease. records in the Converse Courthouse concerning upon by lands in the area offers deposition, In her Mrs. Sullivan Madrid and Norton. located a half Norton explanation of the there is no fact that section of in this land area which was leased correspondence between record of written Company, Woods Petroleum and he made during period her husband and Norton reflecting notations on a lease card that the through January from October Macken, mineral-interest-owner was Cecelia 1975: widow, who owned 100% of minerals. “So, corre- since there was no further The expiration date of the Woods Petrole- spondence, apparently, this would um Company lease was he probably during that time mean [Nor- 14, 1974, quite On I staying Douglas was in lot. October Norton wrote to ton] him Joseph know was there with he told Douglas, Wyoming, in his wife Sullivan stat- me, part the time.” ing that attempting he to contact a Macken, widow, Mrs. Cecelia with refer- testimony following The Norton bears on ence possible gas to a oil on her this matter: lands in County. request- Converse Norton “Q. kept with Mrs. You had in touch ed advice toas her current address. On through period Sullivan replied October Mr. Sullivan that late until the time October informing Norton him Mrs. that Macken executed, you lease was had not? passed away 6, 1974, July and that during “A. I saw them several times wife, Sullivan, Mr. Margaret Sullivan’s E. period, yes, sir. was the Executrix of the will and one of “Q. you stopped Is it a the devisees under the will. The other dev- you every called on them time were isees of the mineral interest Father Douglas? in Colm Woods and Father Terence McGovern. that, “A. swear but it’s I couldn’t 18, 1974, On October wrote Mr. Sul- did, quite yes, possible that I sir.” livan stating that he was interested in leas- in mid-Janu- Perhaps it can said that ing acreage gas for oil ary obtaining lease whs Sullivan willing pay per $25 net acre for a five- certain, disputed that, not it cannot be but year lease. Norton wrote was in mid-January, negotiations Douglas quite suggested often and lease were win or loose Sullivan they discuss the matter further at the Sulli- very imminent. vans’ convenience. parties, clear that record is Norton noted on his lease card that on mid-January meeting, contemplated 8, 1974, November he transmitted a lease meetings up further to wind the affairs of offering per net acre. $25 Sullivans subsequent partnership business and accept those But terms. if the fact, held, was, part- meeting other advantageous them, terms were in- nership County area leasing Converse dicated they would be leasing interested in was not discussed. to Norton. dissent, perfectly am coming to this I While negotiating Norton was with the of all *16 application comfortable with the Sullivans, there was competition from appropriate appellate practice hav- rules Woods Petroleum Company, who was the ing judge the trier-of- being to do with holder of the underlying lease. Woods Pe- evidence its inferences and the and troleum Company higher had made a offer par- favor viewed in of the successful than Norton’s offer. change ty. guidelines These do not may Norton concedes that he have visited the court say substantive that rules every Sullivans Douglas time he was in substantial must base its decision such because he was obtaining judgment. interested in sustain evidence as will be, lease. pursued negotiations under the liquidation his evidence of must
H25 courts proof rules cited from various “clear,
above, unequivocal and decisive.” that
Norton conceded he and partners to continue all light that were imminent. above, taking into facts referred to and con- partnership
account the fact liquidation, during time
tinued until part- fiduciary relationship between the
ners fail to can continued —I see how courts required standard of
conclude
proof prove is met when who must liquidation agreement
conclusiveness represent liquidation
can the terms of the “clear, unequivo- more to be no partners
cal than and decisive” except liquidate everything
would as to me, imminent. which is For this does proof. the standard of meet
I court reversed the trial
insofar as it ordered and that Ma- decreed
drid nothing by Complaint “take herein
filed, insofar as he claims an interest in the
oil gas leases com- described” in his
plaint.
I agree majority opinion with the insofar
as it money judg- directs amendment
ment in against favor of Madrid and Nor-
ton. Bagley & Horiskey, Hickey, of J. Paul BURKE, Appellant L. Howard appellant. Cheyenne, for Hickey, (Plaintiff below), Trautwein, J. Blair Speight B. Jack Kunz, Cheyenne, & Speight Hathaway, A.
WYOMING BANCORPORATION appellees. H. Trautwein, Appellees (Defendants below). McCLINTOCK, RAPER, J.,C. Before GUTHRIE, No. 5102. JJ., ROSE, THOMAS J., Retired.* Supreme Wyoming. Court of June 1979. ROSE, Justice. is whether appeal issue correct jury, without who sat
judge, 5-l-106(f), Constitution, * Wyoming Section par- ROONEY, J., having recused himself Retired, W.S.1977, by GUTHRIE, J., entered on case, order of this court ticipation in this having assigned, in active retained been *17 pursuant judicial Article Section service