*1 ASSOCIATION, PETERS GRAZING (Defendant below), Appellant LEGERSKI, Appellee
Thomas below). (Plaintiff
No. 4497. Wyoming.
Supreme Court
Dec. 1975.
Rehearing 1976. Feb. Denied See 546
Henry Sheridan, Burgess, signed A. appeared brief and argument oral on appellant. half of Philip Badley, Bruce S. Garbutt and P. Shoumaker, Sheridan, Badley & signed the brief, Garbutt, Philip S. Bad- Bruce P. Sheridan, ley Shoumaker, and Micheál K. appeared argument ap- in oral behalf of on pellee. GUTHRIE, J.,
Before Mc- C. CLINTOCK, RAPER, THOMAS ROSE, JJ.
RAPER, opinion Justice, delivered the of the court. put during his lifetime F. Peters
Walter large in Sheridan together a fine ranch April, County. he died When By $2,000,000.00. in excess of was valued will, practi- soon that as he directed executor, R. death his R. cal after his Loss, cash all sell convert into operation, consist- ranch lands used in his land, 20,000 of deeded ing of over acres 2,400 of state about acres leases to permits mountain lands and three federal 5,500sheep. about for realtor, plaintiff-appellee, a somehow sale, for con- learning the ranch was es- Loss, Mr. executor tacted property but was tate, listing for listing to be no that there would told $2,000,000.- bid least of at realtor ^buyers prospective of several 00 from one Thereafter, plain- had been assured. got in touch tiff, apparently May, Barkley, the local Robert a Mr. A. supervisor Administration Home Farmers necessarily paper County apply. been closed who had contact- Sheridan neighbors, organ- stating: group Peters ed defendant-appellant, ized into the Peters “In event do receive neces- Association, unincorporated, Grazing then sary proposal guarantee $2,000,000.00 of a obtaining an FHA loan with a view to private from one of Together they acquire the ranch. Peters m., 5th, p. July 4:00 attorney went to the office willing effecting to assist me in a sale full where the Association, subject to the acreage, lease information about the fee understanding your foregoing relative ” leases, permits acreage, grazing mineral * * * compensation. concerning detailed data Plaintiff approval then endorsed an Barkley gave Mr. ranch. letter, gist terms on stated government option prepare form of *4 listing that he had been a' sale the defendant in association. When filled but consented that: by plaintiff, it was turned over to Mr. “* * * jf jjjg ¿s sold for who, turn, Barkley signed had it a Mr. by in $2,125,000.00 Grazing to Associa- Peters Dow, association, president grazing tion, agree compensation I my then that by Gutz, a secretary. A Mr. its computed shall be set forth basis purchase form of standard offer was also your letter. in agree to assist completed by plaintiff signa- it bore but every way I can to effect a sale to Pe- par- by tures and was never executed Grazing help ters Association and that to proposed ties to sale because custom acquire necessary Association financ- shape drawn forms in the were letters ing.” prepared by attorney for the estate. The defendant grazing association au- Plaintiff then took documents to $2,060,000.00, thorized a bid of and submit- sign the executor but Mr. refused Loss to executor, ted it thereupon to the who prospective purchas- of the other
because agreed to $2,030,000.00 sell the ranch for However, attorney ers. did he have his provided that the Peters Associa- Grazing prepare letter, dated ad- June tion pay would for the of the services plaintiff; brief, dressed it stated specific provision, with re- plaintiff that had contacted the executor spect fee, appeared in a letter indicating represented that he the Peters association, Loss to the which also set out Grazing Association and association separate sale, other terms of the option days purchase an wanted for 60 provided as follows: ranch, the Peters but he did not want “(17) Grazing The Peters Association is sign option par- because had several responsible any for or commission ties bought, interested and if one of them fee payable that Leg- to Thomas expiration he would not have to await the Legerski Realty erski Company for option. say The letter went on to Legerski may service that Mr. have signing the executor before ever performed on Grazing behalf of Peters option any agreement or making in connec- Association in connection the sale it, understanding tion with wanted an of the Walter F. Peters Ranch to the compensation he, what as the execu- Association. The Association must ob- tor, pay plaintiffs would have to for the tain acknowledgment a writtеn from in assisting services a sale to the defendant Mr. Legerski directed to me in ca- grazing suggested fee of association pacity as Executor of the Estate of Wal- $55,500.00which would be less than the Peters, ter F. Legerski that Mr. will look percent, usual five or six in- which it was solely to Grazing the Peters Association magnitude dicated of this compensation sale for his for services ren- property The sale of ranch was never listed the confirmed dered. I have judge the district and closed Legerski about Decem- sale with for Mr. protect ber 1973. The made demand must realtor the Association payment on the defendant for respect against claim in this me $30,000.00 fee; claim. the defendant refused Legerski, he should assert Mr. if ground on the that the had Association I am sure that the will performed never difficulty out it. working a satisfacto- trial, Plaintiff filed and, upon arrangement Legerski.” Mr. action ry the district generally court found in favor these during course Somewhere judg- awarded him a judge had the district proceedings, seems $30,000.00. ment for Not been re- having he would not con- informally indicated that quested, special findings there were no providing for the firm sale fact and conclusions of law entered ques- commission fee. realtor’s court. It is judgment from that the de- reason tion of the correctness appeals. fendant point involved judicial of view lightly brushed this case it is over presents grounds The defendant three apparently motivated record for error: assure the extensive documentation to got paid. Legerski appellee for any not liable contract to Grazing As- July On *5 $30,000.00 prior its entered into date of to Dow, sociation, president, by C. its Jack incorporation. which, signed Legerski, a letter aft- Mr. to the reciting reviewing the that er fact for, Legerski 2. contributеd no services pay executor would not a commission of, Grazing or on behalf Peters Asso- the pur- compensation on account of the ciation, employment and had no contract of by of the ranch chase Peters support payable ap- a by to commission the Association, say: Grazing then went on to pellee, buyer. as you that have “In view of the services Grazing The 3. Peters Association you rendered and the effort that have unjustly $30,000.- by would be enriched behalf, agree if we made our that on 00, be by plaintiff, as claimed if his claim F. acquiring are successful in the Walter denied. Ranch, subject the Peters to reservations previously by Loss, the simple Mr. for noted The that the facts of case are $2,030,000.00 Grazing that of Peters sum executor of the estate of Walter F. Peters $30,000.00, you said pay agreed will have com- substantial accepted by payment plaintiffs services, in full be mission for as a real- you may tor, settlement of claims that if the ranch sold to the defendant. was However, ren- have for commission or services himself when found in bind acquisition apparent judge dered connection the it became that the district payment be of said ranch. Said would fee for realtor. would allow the closing, final that made at the time of it make in this connection We clear 1, be on December 1973.” any explanation or about would the record absent general regard, because of a whether delivered, plaintiff, writing ac- The policy respect the court accepted knowledged the terms case, particular.1 letter. judge no judgment saw the trial judge from indicated such district who 1. The payment objection the amounted to by plaintiff disapproval disqualified what to sit was by land the estate. by fee a realtоr’s tried the district case. It was on this power of direction the judge assigned conspicuous sold under a result. 454 incorporation negotiations between the executor The articles of filed in were Secretary themselves the office of
and the defendant then resolved the State July proposition that offer of 1973. The the asso- into the the members of $2,060,000.00 corpora- ciation are the defendant would re- the stockholders of the president $2,030,000.00,provided that duced to tion. The association presi- signing agreement fee defendant settled became the would corporation. secretary dent $30,000.00 The defend- plaintiff per- signing ant’s claim association witnesses secretary corporation. came formed no services for association. Loss, executor, emphatically Shortly after the ranch says deed to Mr. defendant, corpо- was delivered performed that the ration board of directors the offi- the estate. The to the directed documents admit plaintiff’s contrary. cers to refuse Mrs. Peters to and claim. consented urged the sale the ranch to the Peters This court has never felt too requested that Association and kindly corpo about the technical use of a further bids received or considered. rate slithering device as a means of from appraised The estate netted value. its obligation. under a contract other lawful State general ex rel. Christensen v. Coal Nugget
The defendant relies on the Co., 1944, Wyo. corporation rule that since cannot before fact, organization case, agents principle its In contract for circumstances, itself, appropriate with, strip or' be contracted it is not liable fiction, upon corporate promoters away the contract made its and hold that corporation prior organization obliga ego to its is but alter of an unless the tion is association corpo composing assumed its of individuals own act after hold those rate individuals Even in Wil being. existence comes into Williams liable. 411; 1928, Wyo. supra, recognized liams v. McNally, McNally, v. P. Frazer, 1898, Durlacher that if the Wyo. evidence had been different *6 306, corporation the accepted defendant Am.St.Rep. P. 80 or real 918. The defend any plaintiff’s work, ized benefits from ants those cases claimed the court the and liability a corporations held that could the did not assume accrue. defendant accepted the here the three- argument debts. have benefits of the We that way general applied agreement executor, between rule as the the in those cases. plaintiff, predecessor and the defendant’s date, very 1973, On the July 9, same by taking retaining association and real the all of the acknowledging documents Leger- price at a rejected estate but reduced its ski’s being signed, were services concur- reciprocal responsibility. It was said well rently, prepared the same firm law Barney’s Club, Inc., in Chartrand v. 9 Cir. those by documents was directed the or- 1967, 97, 380 F.2d 100: defendant, ganizers Grazing of As- “ * * * sociation, corporation, generally a it is prepare now held that if a ar- corporation, incorporation knowledge ticles of with full of a the defendant. sale, will, pursuant selling, particular prop- 2- contained mode of or the 283, erty sold, W.S.1957: to be such directions must be property by passes “When is directed In un- will observed. either case title sold, given by authority be or is in the will less sale be confirmed the court.” may pay- property, to sell sell executor defendant does claim that property by of estate without of the of a fee is order ment realtor’s executor court, private sale, public By holding case, at and either or unlawful. in this we do 'notice, disapprove approve and with without a as the executor may determine; property executor must fee for the sale estate realtor’s general proposition, power cases; make return of a such sales as as a under if a and directions are the will as to sale in will otherwise.
455 therewith, give to the evi- conflict before the contract that was formulated party every fa- evidence, accepts dence of the successful corporation into came may be reasona- inference which thereof, required vorable the benefits it will bly it. fairly [Citing drawn from perform obligations. the contract 2 knowledge on the [Citing Suсh cases.]” cases.] imputed part corporation infer- drawing of those What is follows promotor has become from that of a who ences. director, major stockholder officer helped corporation he has to form. findings special absence In the [*] [*] *» fact, reviewing court must consider every find with it judgment carries benefits of Acceptance supported by is the evi ing of fact which implied to an ratification contract amounts 1975, Heinze, Wyo. Hendrickson v. dence. corporation contract entered No. 1133, 1134; District School 541 P.2d incorporation. prior April into Lowe v. 1959, Wempen, 80 County 32 in Fremont v. Industries, 1297; Inc., Utah, 1975, 531 P.2d 232, 321, judg 235. A Wyo. 311, 342 P.2d v. Georgia, Builders Wal Homes Inc. if appeal sustain affirmed on ment will be Inc., 1973, Pump Co., lace Supply & 128 ground in the legal appearing able on 839; Ga.App. 779, Mechanical S.E.2d 197 P.2d Heyl, Wyo.1974, Heyl v. 518 record. Constructors, Acceptancе v. Inc. B-W 30; Romer, 28, Wyo.1968, 436 P.2d In re 957; Okl.1966, Corp., European 412 P.2d 956, 958. Motors, Oden, 1959, Limited v. 75 Nev. 401, 195, citing Mining totality & 344 P.2d Federal of the evi event the In Poliak, 1939, Engineering 59 Co. v. Nev. of services that the extent dence indicates 145, 1008; subject 85 Mountain Pow Rocky P.2d their value are performed and Hamlin, 87, 1957, der Co. v. be Nev. 310 compromise 73 and settlement matter of 404; Motor Po Albano v. Center ex plaintiff, defendant tween the catello, 444; 1954, 348, agreed Idaho 271 P.2d defendant ecutor and the Foote, 1952, Frye Smith, Limited & v. the case figure. That settlement 907, 825, Cal.App.2d citing Supp. language 247 P.2d of the letter express found Scadden, Gold-Mining 1973, Scadden Flat Co. v. Pe 9, written July 38, 440, 442; Dow, Park Cal. P. C. ters Jack Bryan, Addition Co. v. 102 Okl. Legerski, president, to Mr. 959; Texas Weathersby P. It states: Co., Ohio Lumber 107 Tex. “In view *7 of 735, S.W. A.L.R. you have that effort rendered It is the further contention of the de- behalf, if agree that we made on our plaintiff performed fendant that no F. acquiring in Walter are successful servicеs for the defendant so therefore Ranch, subject to the reservations Peters it owes nothing. It has almost Loss, for previously noted Mr. become a appellants ritual that we remind Grazing |2,030,000.00, sum that of of the standard of out in review set Stock $30,000.00, you said pay Association will Roebling, Wyo. 780, 784, 459 P.2d by you in accepted payment to be full wherein it was said: may claims settlement of “ * * * must We assume that services ren- evi- commission or for for dence in favor of the party acquisition successful with the connection dered in ”* * * true, leave out of entirely (Emphasis consideration ranch. said of evidence party of unsuccessful in added.) many Appeal 2. This rule in so eases appears^ impractical Digests. others, Wyoming Error, to list For Pacific them. see West’s must, fact, dispute placed acknowledgment in The his or doubt as stated, acceptance upon rights parties honestly that letter and enter- things: amongst other tained. “ * * * undersigned acknowl- The case, facts this as reflected receipt $30,000.00 edges upon documents, picture, if present false Association, from the Peters literally. They represent viewed an effort receipt that he will proper execute a part on the shift un- executor to his in release * * * favor of the Association. questioned liability determined and for ” payment of a broker’s fee to the defendant. A compromise was reached and settlement They a mirage plaintiff’s created that the had this when is viewed evi- with the>other performed services were at the behest and dence in the case. on behalf of the defendant. executor said it all when in his letter to the defend- The law favors settlement of ant agreeing it, said, to sell the ranch to he controversies. Aimonetto v. National Un “ * * * the proteсt me must ion Fire Insurance Co. Pittsburgh, respect against this the claim of Mr. Pennsylvania, 10 Cir. F.2d Legerski, if he should assert a claim. 600. The settlement dispute a bona fide ” * * * pretended The association then or» a claim, doubtful or unliquidated if that the services performed had been for fairly made good faith, and in is sufficient comply order to with the terms of the consideration compromise for based there sale laid down the executor. de- This on. Parsley v. Co., Wyoming Automotive vious manipulation of the true state of af- Wyo.1964, 395 part P.2d 291. As a fairs designed was to avoid concep- some sale arrangements executor, with the tion that the then district judge would not defendant, in consideration of a reduced approve payment of a broker’s fee for sale price, sale agreed to plain reimburse the engage property. shall not estate We tiff-realtor. The exeсutor was faced with was any speculation regard. There $55,500.00 fee of commitment judge involved. hearing by the district if plaintiff, the ranch he There is record of what said sold to the evidence indi defendant. The circumstances, he and under what if whom threatening cates an that the the record anything. said is clear from promise. upon action based the executor’s paper that this was the motive for all begun either settlement of action disap- shuffling any possible avoid —to threatened, unless it founded on a proval of a broker’s fee. This claim, fraudulent or fictitious is a valid misrepresentation is unattractive to promises by party consideration third concept system legal and offensive to Metcalf, claim. Bolin v. forthrightness. Wyo. 1, Am.St.Rep. 42 P. affirmed P. 694.3 There is no evidence be, may However that we cannot reach fraud here and the evidence refutes proсeeding. executor Neither conception except of fiction in the sense party nor the estate is a case. we shall later discuss. See also State ex We cannot here decide issues that *8 1932, 6, Young, 22, rel. Wilson v. 44 Wyo. exist between the and the Peters 216, 222, 7 114, 122, P.2d 81 A.L.R. to the attorney, estate. The estate all author of compromise, effect that for a valid documents, there plaintiff’s The witness. case, 3. p. 170, many an holding While is old reflects “There are decisions concept. compromise agree- modern “A entirely is a claim which is baseless does persons who, compromise.” ment between two more not afford a consideration for a lawsuit, amicably Compromise 10, avoid a settle their differ- 15A C.J.S. and Settlement § (cid:127) they agree p. ences on such terms as can on.” 201. Compromise 1, 15A C..T.S. and Settlement
457
party
heir
a
par-
not
nor did
to the
exeсutor did
intervene
consideration
a real
ty
in interest in
anyone
stay
else
in the estate
a bond for
interested
of execu-
approved
tion matter. The same
party
a
action.
rule is
come
Coleman v. Mountain Mesa
Cor-
Uranium
In examination
all the circum
poration,
1956,
12, 16,
10 Cir.
240 F.2d
stances,
repeat
previously
what has
where it was held that
party
a third
bene-
ar
been inferred. This was a contract
ficiary can sue for enforcement
rangement whereby
agreed
the defendant
rights
contract,
under a
though he is not a
commission,
plaintiff a
pay
broker’s
party thereto and is not therein mentioned.
plaintiff by
owed to
un
obligation
defendant’s
here
agreement
der a settlement
between
only
arises not
out of
its
direct-
plaintiff and the executor. The amount of
ly
with the
but also
its
out of
agreed
the consideration
paid
to be
for the
agreement with the exеcutor to make ar-
ranch took this into account.
actual
What
rangements with
The execu-
ly exists contractually
party
is a
ben
third
tor obviously refused
proceed
eficiary contract.
necessary
It was not
sale until that was done.
plaintiff perform
any services for the
defendant.
further, mak
goes
The rule
even
here. Where
applicable
particularly
ing it
rule of law that
It is a well settled
another
promise to
makes a
person
a
another,
person
on
agrees with
where one
third
person,
third
such
of a
the benefit
consideration,
thing for
to do a
a sufficient
thereon
action
may maintain an
person
per
person,
the third
third
benefit
contract
stranger
is a
to the
though he
even
and it
may
agreement,
enforce the
son
had no
therefor
consideration
and the
necessary
move
consideration
it was
contract when
knowledge
if there is
enough
from the latter.
named
specifically
and was
made
sufficient consideration between
suffi
long as
is otherwise
so
therein
agreement.
v.
who made the
Shreeve
Bailey v.
designated.
ciently described
641,
Greer, 1946,
35, 40,
65
P.2d
173
Ariz.
1973,
Iowa,
Inc.,
Processors,
Iowa Beef
having
644-645. In a case
similar charac
830,
den.,
95
642,
419 U.S.
cert.
213 N.W.2d
teristics to the one
us a broker was
before
55;
Bank
52,
Farmers
42 L.Ed.2d
S.Ct.
engaged by
sellers,
made
a sale was
Del.Ch.1971,
Howard,
v.
Delaware
State of
buyers
agreed
and the
with sellers to
1967,
Gerdes,
744;
270
Lamica v.
276 A.2d
plaintiff-broker.
the commission to the
Kal
85,
814;
v.
Holmes
153 S.E.2d
N.C.
declared
court
that: “It is well settled
bach, 1953,
736,
The contract merely right, a jural right that historical- performance ly sue to enforce such even was both ‘legal’ ‘equitable,’ and and still though not named in the contract and not is insofar as those terms have modern privy considеration, to its and even though meaning application.” and 4 Corbin on advantage the works contract to the of the Contracts, p. (1951 ed.). 779K 63 Corbin § parties contracting purpose goes and the con on say 787,p. to :95 § ferring party a benefit on third was a self promisee “If the in a contract contem- one, ish benefitting. protecting them plates present the or future existence of Mo.1969, selves. City, Silton v. Kansas a duty liability party to a third and S.W.2d 129. contract between de enters into the contract the ex- fendant and the pro Peters estate was to pressed intent performance that the con- claim, tect the Peters estate from a litiga tracted for is to satisfy and discharge liability tion and for a broker’s commis that duty liability, party the third is a sion. ” * ** creditor beneficiary. A defense germane. must be up of the defend- brings the matter This A breach of another contract nоt be un- point ant’s third that it would the between same is not a de the justly as claimed enriched fense. promisor Where the agrees pay to Corbin, right legal is both As noted the a sum of money party, to a third to whom equitable equity and the of the matter promisee says indebted, he is it is im goes explain reasons for one of the to material whether promisee is actually preclude the rules which defendant. all, indebted to amount at and defens pure case es While this is not promisee which might have had available enrichment, of its as against unjust some has party third are not available to the pects. unjust Ordinarily, en promisor. the maxim Rouse States, United applied in an action richment arises is U.S.App.D.C. 386, 215 F.2d 874. The money had and or restitution received defendant has no standing question to or in other limited See 30 circumstances. settlement between and the Peters Equity p. 982, cases we, nor do because the estate is not C.J.S. help there cannot view cited. We party to this action. inequity take defendant’s note of the “ * * * as intent to ben Insofar presence. position It very of its because person important efit a is deter third permit defendant to inequitable would be to mining right bring action under a It payment plaintiff’s avoid claim. contract, promisor is sufficient that the organiza would result in windfall to that promisee must have understood that unjust Its tion and enrichment. amount * * * specific had such intent. No $2,060,000.00. offer for the ranch was promisor manifestation of an intent agreed $2,030,000.00 lesser price person required.” benefit the third is shifting upon solely purpose for the Hamm, 583, 591, Lucas v. 56 Cal.2d defendant. obligation Cal.Rptr. 821, 825, suggestion There is a lack of den., cert. 368 U.S. 82 S.Ct. es any offer to record of L.Ed.2d intent the broker price $30,000.00by the sale tate the belonged Peters estate. discount gаin unjustly It would was reduced. purchase ed price pay plain in order to but at expense only at the tiff. as well. expense the Peters estate through un party beneficiary’s noted, A third As we slash when “ * * * right legal equitable. derbrush, $30,000.00 both find that the for the are, As actually part of the consideration courts the law now right stand- defendant is without beneficiary third ranch and the party *10 per- ing plaintiff ROSE, claim that assert J., concurs. part is for it. This
formed es- performance required the the Peters GUTHRIE, J.,C. opin- dissented with dispute smoldering a tate. There was ion in McCLINTOCK, which J., con- and It was tween the estate the curred. by a of the resolved condition the Peters between the executor of estate GUTHRIE, Justice, Chief (dissenting). paid plaintiff the that the defendant The writer feels it necessary to file this accordingly to price the reduced dissent in express order to his concerned must look the burden. We accommodate dismay with the majority result which the transaction, an treating it as the whole at approved by affirming the in judgment here, contracts, as entirety. A contract or this case. I re- cannot but feel the light in of all the the must considered mainder of fully the court has not consid- circumstances, facts surrounding related implications ered approval the of the parties, showing of the the nature relations recovery. this the matter and subject situation shall, dissent, upon I in rely only making in the contract. apparent purpose very general summary citations and discus- 1941, Wyo. Thompson, Houghton v. sion indicative of the rules I which believe there and the cases 115 P.2d applicable. This is done because has bring to statement is made cited. This authority precedent. as in rely I shall that the point convergence the fact nearly all instances on the statement benefiсiary agree- the is the appears facts majority opinion, and the defend- ment between the executor which believe fair and in- full most agreement between ant. The stances. device ancillary is to that and defendant opinion majority recognizes that estate-Pe- carry into effect “present picture, false facts this case sale, contract ters represent ef- literally. They if viewed is a Plaintiff misleading as its tenor was. shift part of the executor to fort party third to that accord. liability questioned his undetermined and 356A, Ed., Contracts, 3d 2 Williston on fee broker’s of a 836-838, explicit, it is said: pages is where mirage that the They defendant. created “ * * * purpose of the intent or performed at plaintiff’s services were promisee promise pays for the who on behalf of defendant.” behest and upon as generally that has been looked manipulation,” “a styles it devious further governing. agrees. heartily writer with which this ‡ Jji ‡ n n % and deter- careful This record reveals a give a “If an intent can be found avoid submission mined effort right, intent should be party third necessity propriety question ** effect; judge to the employment of a broker the further avoid- sitting probate, and defendant, by hold We therefore reasonable of a determination ance preincorpora- accepting the benefit of its view, by this decision In therefor. fee the executor tion settlement contracts with activity improper such approves this court plaintiff, and the of the Peters estate in- do said has effect sum of liable to directly, be done directly cannot that which judg- with the $30,000.00, in accordance to this writer. anathema is an of the trial court. ment or that ignorance claim Plaintiff cannot There no error. as he contracted was overrеached knowledge charged with estate Affirmed. *11 460 executor, powers Cooley law of the of the majority opinion, and in face Frank, 451; Wyo. 436, 446,
v. 68 235 P.2d bid appellee from the herein in the sum of Pittman, Wyo. Blessing 416, $2,060,000 v. 70 251 P.2d secured an agreeing instrument 243, 250; ap- and this rule has even been to this sale for the lesser amount from corporations, plied Peters, Board Com’rs Mrs. purposes whom we assume for Co., Searight Johnson Cattle 3 County heir, v. of this discussion is although the sole 777, Wyo. 268, 31 P. 270. the writer is not satisfied from the record that this is the case. difficulty This writer would find no holding agreement all related this these The executor authority had no to bind agreements impede void as tending any estate for broker’s fee absent 1 justice, v. regular Bade administration specific statutory authority by approval Pickens, 260, 264; Tex.Civ.App., 78 S.W.2d probate Any purported court. such 223, p. 1056—which 17 Contracts § agreement, plaintiff’s which is the basis of C.J.S. аffecting application is also of in matters claim, is void and against unenforceable as 52, (see the administration of note estates the estate brokerage fee without a p. 1057, C.J.S.) 17 believes there are determination of the reasonableness ne —but supporting position, reasons this cessity employment of such broker. important which it seems to set out. The estate could not be bound such an pro without the consent of the This writer sees distinction to which court, Estate, supra; bate In re Shaw’s majority given proper believe the has not Lowrey Rego, 16, Cal.App.2d v. 65 P. recognition. 149 The executor of estate 706, 710; though 2d and this is so even supervision whose acts are under the aof contract was for the benefit of the governed by court is different rules and Thomas, 922, Hill Ky.App., v. 462 standards than an S.W.2d individual who could generally 926. See 33 Executors freely supervision, contract such without C.J.S. 198, pp. and Administrators 1180-1182. my and it is view some of the authori- § inapplicable by reason ties cited are there- any way I cannot in join the ma- of. jority insofar as the affirmance of this upon theory Legerski conceded even absent case is based statutory authority this executor could recovery by being is entitled virtue of make a contract this broker for third-party beneficiary contract compensate personally assistance and could appellant tween Loss as executor here- However, him. in absence of such statute v. holdings Heyl in. In view the 28, but the exec- 30, the estate not be liable re Heyl, Wyo., and In 518 P.2d liable, re personally Romer, In Wyo., utor would be 436 P.2d are 351, Estate, applicable herein, 260 Cal.App. parameters Shaw’s P. and certain 353; Cal.App. evi- Fleming, Wilson v. of limitations within the issues and 658, 661-662; recognized by and see 3 Bancroft’s this court or 289 P. dеnce must be Practice, 601, p. Ed.), tri- (2d they this court into a Probate could transform § Practice, opportu- and Bancroft’s Probate bunal for retrial without even the § present p. Ed.). Apparently nity appear anjj the executor (2d rule, dispos- positions or his counsel was aware of this their on the new basis of it has apparent Particularly anx- true when we must infer because of his al. is this this case iety protect argued. himself In to in some manner not been raised or a new liability expense approach demonstrably asserts even at the this from has design appellee recovery upon the estate. In furtherance of basis for appellant had an referred to made reliance nor has the letter which is wrote binding amount 1. authorized shall California has statute “contracts broker, employ West’s Annot.Cal. a real estate the court.” executor to allowed Code, 760, p. Codes, protects then the estate with words Probate even
4(H “ * * * present opportunity us defense services that Mr. Legerski thereto. may have performed on behalf ” * * * Peters Grazing Association. Nor do I find cases of Hendrickson (Emphasis supplied.) Heinze, Wyo., v. 541 P.2d or School District No. 32 Fremont County clearly These plain- indicate the basis of Wyo. 311, Wempen, 80 au- tiff’s asserted claim and the consideration *12 thority disposal upon for therefor a basis of to have been services rendered to third-party or on beneficiary theory because of behalf of Peters distinctions, Hen- in particularly clearly factual demonstrate the nature of that drickson wherein the contention was as- claim. no serted there was substantial evidence To arrive at the result of majority, support contributory negli- of claim it is transgressed view the court has clеarly gence, question which was a principle recognized Phillips in presented by Wempen, pleadings. In Hamilton, Wyo. 95 P. it, question present- as the writer reads Petrole- reiterated McGinnis v. General jury finding the general ed whether was Corporation, Wyo., um it. subsidiary included all facts to sustain has duty making assumed the a con- case, my view, justifies Neither or com- parties. for these tract general possible exploration mands a for judgment I would herein for reverse scope findings new theories or outside the is no the reason there was and considera- disposal. for the issues as basis Leger- tion under which The record and herein evidence do in the rec- ski no evidence claims. find Leg- sustain such a basis for affirmance. he any which contributed ord services complaint his erski in does not assert by its association to the association. The beneficiary right third-party as question of lаck squarely raised the answer directly with this claims under a contract point assert- The second consideration. testimony he reaffirms association. In squarely rais- appellant appeal by ined agree- states that the letter claim and performed had appellee that es the issue relies, are upon which he and which ments association, I con- which services for this record as Exhibits set out As applicable to consideration. strue as majority his claim. The are the basis for upon the made reliance is reason therefor complete paragraph opinion sets out of the law: following statement Grazing Association from Peters the letter no consideration in fact there “If Leger- president, Mr. by Dow, as signed not made enforceable it is promise, emphasize the ski, proper think but I recital is a written that there by the fact
follоwing: acknowledgement an consideration have you that "In view the services received.” been has that a consideration you rendered effort 130, p. 558 Contracts, on 1 Corbin § * * * full on our made behalf on see 1 Williston Repl.); also (1963 any claims settlement of ed.). (3d 115B, pp. Contracts, 468-469 ren- services or for commission have for Allen, D.C.Mun. court, in Allen v. acquisition The in connection dered ”*** recognized A.2d App., (Emphasis ranch. of said these authorities. upon both in reliance rule supplied.) in this tendered directly issue This the association letter Loss In another defend- which ground by the second appeal appears para- day, there same dated the there- In connection error. as asserts majori- ant in full set out which is graph testimony of unequivocal ex- there the writer from which ty opinion but him employ did not Dow Legerski material: portion he believes cerpts the buy any nor ranch was there ed performed volunteer who unsolicited agreement with either Dow as- Mr. or the coupled acts' and then these with the im- He plied sociation. never showed the ranch to suit, threat of a execu- led the produced them nor the association as a unholy arrangement. tor into this In the buyer. The record is clear the associa- absence of showing tion’s interest was not occasioned performed by Legerski, for the association Legerski; Leg- although activities of light and in fact when there attempts Barkley to involve Mr. erski was some discussion between the board of association, agent say he and did Legerski directors and of this claim Barkley on worked for Mr. behalf per- refused to state services he had association, showing certainly there is formed, and the fact he is a volunteer who Barkley’s authority any agency might styled impudеnt also be as an inter- part, certainly and he is not a member of loper, equities cannot see the which arise *13 it is I cannot believe the association. in his favor as mentioned in the section of of the court proper to substitute the view opinion this which enrich- unjust treats was and what what the contract to ment. pleaded have or claimed. should been improper This writer does not believe it sugges disagree particularly I suggest large pub- to portion that a in manner recovery this could tion that years jaundiced lic has had for some en unjust doctrine of justified on the be probate procedures many view of and in majority the agree and richment cases them not for believe to be utilized un “pure case” of certainly is not a this the best interests of the estate but as a ve- some fear but have just enrichment lawyers hicle for in enrichment —and by this may be misled bar the bench this case a real estate broker. The writer Razan of Gard The case discussion. deny might cannot be such inference 612, 65 A. skas, 85 N.W.2d Iowa in readily from the available result reached defini a usable contains L.R.2d case, this and it is his view that such result enrichment,” and “unjust the term tion of encourages attorneys and their executors relates definition noted that this isit to be ingenuity escape super- to exercise their to to particularly restitution right to this visory control of court probate the. “ po the is restored to he party ‘when the may encourage ques- well the assertion by the occupied either formerly he sition tionable claims. formerly had something which return of money. in equivalent its receipt of byor McCLINTOCK, in concurring Justice, ’ Law, Restitu . . . [Restatement GUTHRIE, the dissent of Chief Justice. demonstrably There tion, p. 12].” said, has “A convinced Someone man only in this case. of that no element opinion against the same his will sorry picture entity in this entire involved still.” I that the briefs and oral confess this would might assert successfully which arguments in this left me with case been has dis- outrage expressed same sense of in the deprived arrangement which victim of I senting opinion of Chief Justice. $30,000. the trust res of that estate was never convinced that there was plaintiff In fairness to the association and to running from the consideration majority question in implication cause of the inclined to association. I was say opinion engaged has to that the association there real basis whether activity, it executor inequitable improper dispute between the some that a existed spend equitable appear Although I did would that the so-called and the express to picture majority should in an effort drawn considerable time concerns, possess I did not supplemented by following my facts. doubts Chief scholarship shown the same record shows that was an.uninvit- I compose what The defendant was unable to would not have been able Justice opin- proper dissenting properties come thought price would be a at it paid However, my opinion if the up ion. the dissent is his had not taken, though pre- right had well even I claimed action. Whether my proven employment viously indicated concurrence could opinion that and and services majority I must withdraw rendered is not for us to here He give up right in the dissent. decide. did his concur fact against action for the estate return promise $30,000. defendant’s This ROSE, concurring in (specially Justice was a settlement for which there was con- majority opinion). running parties sideration to both I into get huge think trouble when lawsuit. we undertake look issues of outside the has say the defendant point accusing fingers in order to case placed position itself in a where problems persons at in or plaintiff, deny good now the debt. The justify action in an or ac- effort detriment, faith on the and to his relied result, justifi- commodate a whether be a promise of the defendant when he released majority opinion the dis- cation of concept me to claim. This enables sent. results of reach concurrence with the majority opinion. Like the Chief cold facts are that the defendant Jus- *14 tice, problems major- I some purchased at could not have the ranch ity’s third-party-beneficiary theory. price arranged did it it unless had plaintiff $30,000 a release and obtain good Whether the claim was —bad—or against indifferent, claim that the had alleged to have never right wrong or estate. Whether it was been fraudulent and it seems me lay the executor the estate treating issue though are this case as this before he would sell allege condition fraud. The did or were not executor defendant matter between the prove upon theory rely this law may be of concern they and the defendant probably have), should (even though problem level, go to the heirs—or some I, appellate not at the would profes- there are court in another case. If of other the issues or in search outside question, are in people ethics into bring sional whose fraud parties in an effort to problem might properly this become case. authority appropriate resolve with outrage the Chief I can relate ultimately this Bar—or Wyoming State in- inferences and when the Justice nuendoes But, my judgment, junc- at this Court. shenanigans transparent of these totally ture, ancillary inquiries these are outrage out considered, comes are this cаse. outside the issues really not wrongdoing that apparent rectifica- us either for decision before properties acquire the ranch In order should matters that these tion. acknowledging that the upon be be- or should here before us have been in behalf performed had valuable services not be- doI in another action—but fore us agreed to defendant wrongs which are sins or lieve that plaintiff’s fee consideration should the lawsuit corners of the four within pur- renouncing his claim. accounting. our fixed de- price property chase them troubles All whose conscience discharging upon the defendant’s pending should anger our anger but should feel our that the defendant obligation. Now judgment. our cloud renege on it wants to
has the ranch the ma- result of precise concur promise. For me constitutes opinion. framing problem. jority accurate