13 P. 350 | Idaho | 1887
This case is founded upon a contract which was entered into between the plaintiffs and defendant Kellogg, wherein plaintiffs were to furnish said defendant with a prospector’s outfit known in miner’s parlance as a “grubstake,” in consideration of which Kellogg was to do certain prospecting, and to give to plaintiffs a one-half interest in all mining claims discovered by him. Kellogg received the outfit, and did the prospecting. It is claimed by the plaintiffs that Kellogg discovered all of the mining claims for which this suit is brought while working under said contract as a prospector, and that he made location of some of them; but that he afterward, for the purpose of defrauding plaintiffs, procured defendant O’Kourke, without plaintiffs’ knowledge or consent, to accompany him, and to take down the location notice put up by Kellogg, and to relocate the premises in the name of O’Rourke. All of which defendants deny, and claim the Bunker Hill, the only claim now in controversy here, was discovered by O’Kourke alone. Hpon the trial a jury was called, and special questions submitted to them, upon which they found the facts. The court adopted a portion of their findings of fact, and further found that “on September 10, 1885, Kellogg became the owner, by location, of an undivided one-half interest in the Bunker Hill lode; that at the time he acquired this interest by location, he was under a contract with plaintiffs, by which they were to have a half interest in all mining property located or acquired by him; that plaintiffs were the
The findings, we think, cover all the material issues raised by the pleadings, and are sufficient to support the judgment. After a careful examination of the whole case, which is very voluminous, we find it more a question of fact than of law, and upon the question of fact we have no hesitancy in saying we think the findings fully sustained by the evidence. If the defendants, Kellogg and O’Rourke, have acted in good faith, and did not intend to defraud these plaintiffs out of their legitimate interest in the Bunker Hill claim, they are certainly unfortunate in having their transactions, as detailed by themselves, ladened with many badges of fraud. We are unable to see how any impartial mind can arrive at a different conclusion. Their conduct relative to this mine is consistent with this theory, and inconsistent with any other.
We have examined all the assignments of error, and deem it unnecessary to discuss them in detail, inasmuch as we find no error that would warrant a reversal of the judgment. Judgment affirmed.
