80 Cal. 426 | Cal. | 1889
This action was commenced by Horace Adams, plaintiff's testator, on September 2, 1880, for an accounting, and to compel the defendant to convey to him an undivided one-third interest in the Mount Pleasant mine. When the plaintiff learned, from the answer to his complaint, that the defendant had conveyed the property to innocent purchasers, and that a specific performance of the contract to reconvey was impossible, he filed an amended complaint, alleging the value of the mine, and praying that if it should appear from the evidence that a specific performance could not be enforced, a judgment be entered against the defendant for the value of the property. The history of the transactions involved is clearly and fully set forth in the findings of the court. These findings show substantially the following facts:—
“Whereas, Leonard Goss and O. D. Lambard, on the 26th of July, A. D. 1868, purchased of Horace Adams, -Waters, and W. T. Grissim, the Mount Pleasant mine, situated in Grizzly Flat, El Dorado County, and are now the sole owners of said property,—
“Now, this agreement witnesseth, that, in consideration of one dollar to them, the said Goss & Lambard, paid by H. Adams, the receipt whereof is hereby acknowledged, they hereby bind themselves, their heirs*430 and executors, to convey to the said Adams the title they now possess to one undivided one third of said property whenever the said property shall have canceled its indebtedness to them, and no indebtedness shall be incurred that is not strictly required, and neither the said Goss-Lambard shall receive any salary for attention to the business till the indebtedness is canceled.
“Witness our hands and seals this the 18th of September, A. D. 1868. “ O. D. Lambaed.
“Leonaed Goss.”
In pursuance of this agreement, Goss and Lambard commenced to work and develop the mine, and continued the same - until April 21, 1871, with varying' success, when the firm of Goss & Lambard was dissolved; in the -distribution of their partnership property, Goss conveyed his interest in' the mine to the defendant, Lambard, who accepted the same with full knowledge of all the conditions of the agreements between them and Adams; Lambard continued to work, develop, and operate the mine with some interruptions, suspending the work at times to suit his own pleasure, until the thirtieth day of July, 1880, when, without consultation with or the knowledge of Adams, he sold and conveyed the same, and delivered the possession thereof for a valuable consideration to an innocent purchaser; while the defendant held the mining claim and property, he procured a patent therefor from the government of the United States for a distance of 3,635 feet along the lode, and 300 feet in width on each side thereof, and from the state of California for 200 acres of land adjoining the same, but all the mining ground covered by these patents was embraced within the tract known as the Mount Pleasant mine; these patents were procured in further assurance of and to protect the title acquired from Adams, Grissim, and Waters, and not in hostility thereto, and the defendant based his claim to the patents upon and received the same because of his claim to the
The only important question upon which appellant and respondent appear to differ is the question whether the amount defendant had realized from the mine at the time he sold it was sufficient to cancel the indebtedness mentioned in the agreement. This question involves the inquiries as to whether the ten thousand dollars paid to Waters should be considered as a part of the “indebtedness,” and whether interest should be computed on the account.
It is contended by appellant that the agreement of September 18,1868, was without consideration,—was an independent transaction,—and that the court erred in its construction of the agreement, and in admitting parol evidence to explain it. Nevertheless, defendant disavows any intention to repudiate the agreement or deny any of the rights of plaintiff thereunder. It is admitted that the contract is to be construed in the light of the sur
There can be no doubt, we think, that parol evidence was admissible to prove the true consideration of both the deed and the agreement. The two constituted one
It is claimed by appellant that the finding of the court, to the effect that the amount received by defendant from
We think the court properly refused to allow, as a part of the moneys which defendant was authorized to deduct from the income of the mine, the ten thousand dollars paid to Waters for his one-third interest. Waters had become the owner of an undivided one third in the mine. Of course Grissim’s interest, which Waters acquired, was subject to its proportion of the lien claimed by Goss & Lambard, but the purchase seems to have been an independent transaction,—one not in any way connected with the real purpose of the transaction between Goss & Lambard and their debtors, Adams and Grissim. The deed, it is true, was executed by Waters as well as by Adams and Grissim; but Goss & Lam-bard knew that Grissim had no interest in the property at the time he joined in the deed. The ten thousand dollars paid to Waters we think constituted no part of the debt which Adams undertook to pay off by conveying his two-thirds interest in the mine. It does not seems to have been contemplated in the negotiations leading up to the final adjustment of their affairs. The court below evidently believed, from all the circumstances surrounding the transaction, that the parties did not understand Adams was to buy any outstanding one third of the mine for Lambard, or to allow the latter to purchase it and figure the purchase price in the amount of indebtedness which he, Lambard, was to be reimbursed for before Adams could receive anything in return. The indebtedness referred to in the contract was the indebt
We think the court properly refused to allow the defendant interest on the amount of the indebtedness or moneys expended in working the mine. As said in Tirrell v. Jones, 39 Cal. 655: “As we construe the contract, it was not within the contemplation of the parties that the defendant was to charge interest on the money to be advanced by him.” It is conceded by all parties that the indebtedness was paid by the conveyance of the property, and it is also conceded that the defendant was not bound absolutely to work the mine at all, and that he was at liberty to cease the work whenever in his judgment it was best to do so. Therefore, the debt no longer existed as a subsisting debt; Adams took the risk of losing his interest in the mine, which rested upon their disposition to work the mine, without reserving to himself any power to compel them to do so; it does not seem reasonable to suppose that Adams intended to take the risk of allowing an accumulation of interest on the thirty-six thousand dollars of indebtedness until principal and interest had grown to an indefinite amount. Furthermore, it was for the advantage of Goss & Lam-bard to recover back their principal sum in the manner agreed' upon as quick as possible, and secure the one-third interest in the mine without cost to themselves, except the use of their money. We think that, where the agreement is silent as to interest, and where the creditor secures the property of the debtor under such circumstances, no interest should be allowed; especially where, as in this case, in addition to paying the indebtedness out of the property, and all advances made thereon, the creditor is to retain an interest in the property in consideration of the use of the money advanced. The court has found that the defendant, in fraud of the rights of the plaintiff, and without the knowledge of the
We have fully considered the other points made upon this appeal, and find nothing in any of them warranting a reversal of the judgment.
Judgment and order are therefore affirmed.
McFarland, J., Sharpstein, J., and Works, J., concurred.
Thornton, J., and Beatty, 0. J., dissented.
Rehearing denied.