212 Mo. 359 | Mo. | 1908
— This is an action by attachment brought by the plaintiff against the defendants in the circuit court of Jasper county for $4,166.66, together with interest thereon from November 2nd, 1901. The ground of the attachment was that the defendants were non-residents of the State of Missouri, and were about fraudulently to convey and assign their property and
The petition in substance states that the defendants were partners at all the times hereinafter mentioned and engaged in mining for lead and zinc ores in Jasper county, Missouri; that on or about January 8th, 1900', Adam Scott was the owner of a certain mining lease and machinery on lots No. 9, 10, 17 and 18 on the land of the Chitwood Hollow Mining Company, which lease bore date July 12th, 1899, and ran for a period of ten years from said date and was known as the “Great Scott” mine. That on or about January 8th, 1900, said Scott executed and delivered to defendánts A. B. Barteau and A. O. Bolen a certain contract of sale of said mine and lease in words and figures as follows:
“Joplin, Mo., January 8th, 1900.
“I, Adam Scott, hereby sell and assign to A. B. Barteau and A. O. Bolen who are hereby designated as parties of the second part an undivided one-half interest in a certain lease from Chitwood Hollow Mining Company, to Adam Scott bearing date of July 12th, 1899, and running for a period of ten years from date; said lease covering lots Nos. 9, 10', 17 and 18; also an undivided one-half interest in all fixtures, viz., one Sullivan steam drill, pipes and fittings, one twenty-five H. P. boiler except one hundred dollars payment to Leedy & Co., all tools, rope, tubs, cars, derricks, lumber, etc.,with .large cage shaft down to about eighty feet for and in consideration of $2,500 in hand paid the receipt whereof is hereby acknowledged and the further conditions and stipulations hereinafter contained, viz., that said second parties are to pay me the
“It is further agreed by and between the parties hereto that if said second parties do not make the further payment of $2,500 as above set out in second payment, then any and all payments previously made shall be held as liquidated damages and said second parties shall reassign back to said Adam Scott all their right, etc., title and interest, in the above described property as herein conveyed.
“In witness whereof we have hereunto set our hands and seals as of the date first above mentioned.
“Seal. Adam Scott.
“Seal. A. B. Barteau.
“Seal. A. O. Bolen.”
That said contract of sale was duly recorded in Jasper county, January 17th, 19001; that by the terms of said contract said Barteau and Bolen acquired an undivided one-half interest in said mine and lease, and by the terms of said contract it was agreed and understood that when the shaft of said mine then in the process of sinking should reach mineral sufficient to satisfy the parties of the contract that pay mineral existed in quantities sufficient to justify the erection of a mill on said property, then a complete concentrating mill should be erected by all parties to the contract, and that
“ Joplin, Mo., February 6th, 1900.
“I, Adam Scott, hereby sell and assign to A. B. Barteau and A. O. Bolen who are hereby designated as parties of the second part an undivided one-sixth interest in a certain lease from Chitwood Hollow Mining Company to Adam Scott bearing date of July 12th, 1899, and running for a period of ten years from date; said lease covering lots Nos. 9, 10, 17 and 18; also an undivided one-sixth interest in all fixtures, viz.: One Sullivan steam drill, pipes and fittings, one twenty-five H. P. boiler, one steam hoister, all tools, ropes, tubs, cars, derricks, lumber, etc., with a large cage shaft down about one hundred feet, for and in consideration of $5,000 cash in hand paid, the receipt whereof is hereby acknowledged, and the further conditions and stipulations hereinafter contained, viz., that said second parties are to pay me the further sum of $2,000 when said shaft now in process of sinking shall have reached mineral sufficient to satisfy them that good pay mineral exists in said shaft sufficient to justify the erection of-
“In witness whereof we have hereunto set our hands and seals the date first above mentioned.
“Seal. Adam Scott.
“Seal. A. B. Babteau.
“Seal. A. O. Bolen.”
Which said additional contract of sale was also duly recorded. That by said last-mentioned contract of sale said Barteau and Bolen acquired a further one-sixth interest in said mine and lease and said Scott reduced the amount of the aforesaid deferred payment of $5,000 to be paid him out of the first net profits of said mine by one-sixth, leaving a balance to be paid said Scott out of the first net profits of said mine $4,166.66; that according to said contract it was agreed that when a certain shaft then in process of sinking should reach mineral sufficient to satisfy the parties to the said contract they would be justified in erecting a mill then a complete concentrating mill should be erected by all the parties to said contract, and that all parties to the contract were to bear equally their part of the expense in sinking the shaft and developing the property. That
At the May term, 1904, by agreement of all parties to the case, the cause was referred by the court to A. C.
There was a motion by the defendants to set aside the report of the referee on various grounds and the court set it aside in so far as the referee reported his conclusion of the law, on the ground that the- law of the case was not referred to the referee, but in all other respects the report of the referee was sustained and the court rendered jiidgment for the plaintiff for $1,975.65. In due timé the defendants filed their motion for a new trial, which was heard and overruled by the court and thereupon the defendants appealed to this court in due form.
« I. The first contention of the defendants is that the court erred in referring this cause to a referee-, on the ground that Scott and the defendants were co-partners and the suit should have been brought in a court of equity instead of an action at law. We think there is little merit in this proposition for two reasons: First, the record shows that the cause was referred to the referee by the mutual agreement of all parties to the suit, and, second, for the reason that Scott’s right to the payment of the $1,166.66- did not grow out of the partnership arrangement between these- parties, but out of the contract between them by which the defendants were- to pay Scott that sum as part payment for a two-thirds interest in his lease. This liability on the part of the defendants to Scott and the plaintiff as his assignee is not different in law from what their relation would have been if defendants had given Scott their note for that amount in payment to him for the interest which they acquired in his lease with the view to a subsequent partnership in the development and operation of said mine; it was not a firm transaction to be settled
II. A number of declarations of law were prayed by plaintiff and the defendants, but in the view we take of the case, it is unnecessary to discuss them in detail, for the reason that the sum of the declarations given in behalf of the plaintiff was simply to the effect that if the current receipts of the said mining venture between March 20th, 1901, the time when the mill began to be operated, and November 2nd, 1901, exceeded the current expenses of operating said mine then first net profits existed, and the plaintiff was entitled to receive the $4,166.66 and interest thereon from November 2nd, 1901, if said net profits amounted to that much, or was
In construing the words ‘ ‘ first net profits, ’ ’ in the first contract, the words, used in the second contract must be read in connection therewith, to-wit, ‘ ‘ it is understood that by the conveyance of this interest it will reduce the deferred payment to be taken out of the ground, in former contract, the ratio of one-sixth.” At the outset it is essential to keep in view that the $4,166.66 was a deferred payment to be made to Scott as a partial payment for the interest he thereby' sold to defendants; in other words, was a part of the purchase money for said interest, and as to that the words “net profits” ought not to be construed as in the case of dividends to be distributed to stockholders in which interest on bonded indebtedness is accounted as a part of the liabilities or current expenses before dividends are payable. [St. John v. Railroad, 10 Blatchf. 279, 22 Wall. 136.] Nor yet upon the basis, of a final adjustment between plaintiff and defendants upon the final settlement of the venture upon the whole lease, but rather upon the principle announced as to the proper mode of ascertaining profits where an individual not a
f This is not a case in which the parties contemplated ythe prosecution of this mining enterprise for the full / term of their lease and to pay Adam Scott at the end of j that time the deferred payment which defendants / agreed to make him for their share in the lease and in which he must wait until the termination of the lease and until all liabilities had been paid and then to receive said $4,166.66 out of the remaining assets, if there were any “net profits.” We think it is perfectly obvious that all parties to' this agreement understood and agreed that out of the first net profits from ores taken out of the ground, Scott was to receive the balance of the purchase money due him and that by first net profits they meant the first profits arising from the receipts for ores over and above the current expenses in operating the mine, including current repairs and betterments, and it was never intended that defendants should be reimbursed for all their outlays in the way of capital before they should pay this deferred, and, we add, preferred, claim to net profits. To so hold would be to say that defendants could retain all the1 capital they had invested and require the plaintiff to wait until they had earned the full amount of their capital before paying the purchase money they had agreed to pay plaintiff. The contracts are not fairly susceptible of any such a construction. We have read the numerous authorities cited by counsel, but it would subserve no good purpose to review them at length and distinguish the various conclusions reached by the courts as to the meaning of the term “net profits” in the peculiar eirj .'cumstances of each case. Many, and indeed most, of the j cases are those growing out of partnerships or cases in