7 Colo. App. 332 | Colo. Ct. App. | 1896
delivered the opinion of the court.
This suit was brought by the plaintiff in error against John P. Karns, W. E. Young, Harry Walsh, and the defend
At the trial the execution of the following contract was admitted:
“Articles of agreement, made and entered into this 10th day of June, 1892, by and between W. E. Young and John P. Karns, parties of the first part, and Ralph Williams, party of the second part, all of the county of Ouray and state Colorado, as follows:
“ The parties of the first part are engaged in extracting ores from what is known as the ‘ Wheel of Fortune ’ group of mines in said count}', and they agree to furnish to the party of the second part, at the city of Ouray, in said county, at'that certain concentrating mill formerly known as the ‘ Strout Concentrating Mill,’ seven (7) tons of concentrating ore each and every day during the term of this agreement from the said group of mines, or as many tons, not to exceed seven tons per day, as can be treated at the said mill.
“ The said party of the second part agrees to reduce and concentrate such ore so furnished in a good and workmanlike manner according the plan of treatment in the said mill at and for the agreed price of five dollars per ton, and agrees to treat seven tons of ore per day at the said mill, or as many tons not to exceed seven tons per day as can be treated in the said mill, and to render to the parties of the first part good and reliable assays of pulp and tailings, so as to show
“And it is further agreed and understood by and between the parties hereto, that in case the said parties of the first part fail to furnish the said seven tons of ore from the said mines each and every day, or so much ore as is necessary to run the said mill, then and in that case the party of the second part shall have the following interest and the following terms shall be held binding on all the parties hereto the same as if made the agreement in the first instance; provided always, that in case such failure to so furnish said ores arises from any unforeseen accident, not the fault or negligence of the parties of the first part, then so long as such hinderance remains without the negligence or fault of the parties of the first part, the above terms of forfeiture shall not become operative, and it is understood that in case such accident does arise it shall be the duty of the parties'of the first part to immediately inform the party of the second part.
“ In case the parties of the first part fail or refuse to so furnish ores from said mines as aforesaid, then according to the foregoing conditions the above agreements shall cease to be binding on all parties hereto. The party of the second part shall have an undivided one fourth interest in and to all ores of the second-class that may be extracted from said mines during the term ending June 10th, 1893, and the same interest in and to all ores of the second-class that may be now or may be hereafter extracted or taken from the said mines by the said parties of the first part, and ores of the second-class shall be such ore as when sorted and separated at the mine from the rock shall run fifty ounces in silver or less per ton. The party of second part shall pay one fourth of all proper and proportionate expenses in the extraction, shipping and milling of such second-class ores up to the time that the same shall have been milled or disposed of, and the party of the second part shall receive one fourth of all profits arising from the sale of such ores. It is further agreed and
“ It is further agreed and understood by and between the parties hereto that the party of the second part shall furnish under this agreement and in this contingency the said Strout mill and the cost of running the same, the rental and charges thereof shall be divided among the parties hereto as expenses in the same proportion as above stated; and the party of the second part hereby agrees in such event not to charge any rental over and above what he is compelled to pay for said mill. It is expressly understood and agreed that it is the purpose to extract the greatest amount of ore and to mill the same at the greatest profit possible.
“ All terms and agreements herein contained shall extend and continue for the period of one year from the date hereof, to wit, until June 10th, 1893, and in case the first provisions herein contained are not carried out then the following conditions and agreements shall extend for the remaining portion of the year as above fixed.
“ It is further agreed and understood that the parties of the first part shall have six days in which to begin the furnishing of ore according to the first terms herein contained.
“ In witness whereof, the parties hereto have hereunto set their hands and seals in duplicate the day and year first above written.
“ W. E. Young. [seal]
“ John P. Kahns. [seal]
“ Ralph Williams, [seal] ”
The amount of the original claim of the plaintiff was also admitted; and it was further agreed that the unpaid balance ■was largely, if not entirely, due from persons operating the Wheel of Fortune mine for freighting second-class or mill
The evidence was that ore was not furnished as required by the contract, and that the failure was not due to any accident or cause mentioned in the contract as excusing it. Thomas Downer was bookkeeper and business manager of the plaintiff, and kept the plaintiff’s accounts and collected his bills. Having heard from some source that Williams was a partner in the business, Downer had several conversations with him while the freighting was in progress. He presented bills to Williams at different times for the hauling. The latter in one conversation objected to the bill presented, saying that it contained items that he had nothing to do with, that all he was interested in was the ore that came to his mill, — the second class ore. On another occasion, upon being presented with a bill for §700, Downer and Williams figured up the amount due on ore that was brought to the mill, and found it to be §500. This amount Williams promised to pay out of the proceeds of a car of concentrates then ready for shipment. Williams paid Downer for the plaintiff upon the bills at one time §100, and at another §200. On one occasion Williams found fault with the price that the plaintiff was charging for hauling the ore, — §2.50 per ton. Williams said this was excessive, and the work must be done cheaper, — that it ought to be done for §1.50 per ton. The plaintiff’s contract for hauling the ore was made with Mr. Young, and not with Mr. Williams.
The defendant, Williams, testified in his own behalf that after the execution of the written agreement, the other contracting parties were unable to comply with its terms in the matter of furnishing ore, and Mr. Young had an interview with him on the subject. He told Young that the agreement was objectionable to him because it did not provide a
Mr. Walsh testified that he was present when the verbal agreement was made, and gave the conversation between Williams and Young substantially as Williams stated it. Karns testified that he never liad any knowledge of this verbal agreement. It was after this that the shipments of ore from the mine took place. These shipments, as well as the working of the mine, were in charge of Young. Walsh was not a party to the written contract, but seemingly acquiesced in it, and in everything that took place subsequently. There is no substantial disagreement among the witnesses.
The court found specially, as its conclusions of law, that the original agreement did not constitute a partnership among the parties, that it was abrogated by the subsequent verbal agreement, that Williams had not held himself out as a partner, and that there was no partnership liability against him.
The subsequent verbal agreement did not displace the other. We shall not discuss the right of Young, Walsh and Williams to alter the terms of the written contract without the consent of Kama, but shall, for the purposes of our decision, treat the verbal arrangement as binding upon all the parties. It is clear from the testimony that this was, and was intended to be, only a modification of the original contract. It changed the original contract in only one — and that a comparatively unimportant — particular. Williams was dissatisfied with the provision concerning the use of the mill. The rental, and the cost of running the mill, were to be divided; but there was no provision concerning repairs, or the furnishing of additional necessary machinery. These
From what we have said it would seem superfluous to devote any time to the acts and declarations of Williams in connection with the business which the plaintiff was transacting, but we cannot forbear saying that he presented the appearance of a partner. He analyzed the plaintiff’s bills, and criticised his charges; he promised payment and made payments; he assumed an authority which belonged to a partner; and even if he had not been a partner in fact, his conduct would have justified the plaintiff in believing him to be such.
Our conclusions throughout are diametrically opposed to those of the trial court, and its judgment must be reversed.
Reversed.