123 Iowa 488 | Iowa | 1904
Plaintiff contends that he and defendant in the year 1891 went to what is known as the “Cripple Creek Mining District,” in the state of Colorado, for the purpose of prospecting for and locating mining claims, and that on or about February 2, 1892, they entered into an agreement whereby each should have an one-half interest in anj and all mining claims which might thereafter be located by them, or either of them, or in which they, or either of them, might obtain an interest, éach to furnish su,ch labor, supplies, or money as were necessary to perfect locations, etc.; that under said agreement there was loeated in El Paso county, Colo., the Tidal Wave lode mining claim, the certificate whereof and the title thereto being taken in the name of the defendant; that under said agreement defendant also procured and took in his own name two certain other lode mining’ claims, known as the “Devil’s Own” and “Bobtail No. 2”; that plaintiff performed labor and furnished supplies for and upon each claim, entered into the possession thereof jointly with defendant, and assisted him in perfecting the title thereto. He further alleges that in March of the year 1894 defendant sold the Bobtail No. 2 to the Portland Mining Company, receiving therefor one hundred four thous- and, six hundred and twenty-five shares of stock in the s,aid Portland Mining Company, which belonged to the plaintiff; that in 1895 defendant sold the Devil’s Own and the Tidal Wave claims to the said mining company, receiving therefor one hundred and twenty-seven thousand, six hundred and seventy-eight shares of stock in said company, which belonged to plaintiff, by reason of the aforementioned agreement; that defendant has received as dividends on the stock received from the Bobtail No. 2 claim the sum of $1.30 per share, and the sum of $1.20 per share on the stock received for the other-claims. He also alleges that defendant has refused to deliver
There are four hundred and forty-five assignments of error, and it is manifest that we cannot consider all of them. Indeed, we are not called upon to do so, for but a comparatively few of them are argued by counsel. Once for all, we may say that if the action is properly at law — a point we shall hereafter consider — -the verdict has such support in tbe evidence that, were we acting as an appellate tribunal, we should not interfere therewith. We shall discuss such of the assignments of error as are argued, and seem of sufficient importance to demand separate consideration. Learned counsel tried the case in the court below, and we have had the advantage of able and exhaustive briefs, with such suggestions in oral argument as were deemed important to a full understanding of the question presented. We shall not take up the points in the order in which they are presented by counsel, but chronologically.
. Binding, then, as we do, that neither plaintiff’s pleadings nor his proofs disclose a partnership, but that he and the defendant were co-owners or co-tenants of the mining claims, the next question is his right to recover in an action at law a specific part of the personal property, or its value,
Much of the stock issued for the claims in which plaintiff asserts an interest was placed in the name of Kate Burns, as trustee. One Peck, who was an officer in the Portland Company, and also a relative of the defendant, -wrote a letter to plaintiff in which he inclosed a written receipt to be signed by him (Doyle) to Nate Burns for the stock in her name. He (plaintiff) was also asked to bring over his stock, to see if he had received all to which he Avas entitled, that stood in the name of Kate Burns as trustee. This release or receipt read as follows:
“Know all men * * * that * * * heretofore there has been in the name of Kate Burns, 301,418 shares of Stock of the Portland Gold Mining Co. standing in her name upon the books of the company, which stock has been endorsed by the said Kate Burns to the undersigned; and whereas, the suit of John G. O’Haire, against the undersigned, has been ■settled and compromised, and the said stock is now about to be transferred to the undersigned, upon the books of said -company.
“Noav, therefore, I, James Doyle, do hereby forever release and discharge, the said Kate Burns from any and all liability of whatsoever kind or nature concerning said shares ■of stock, and undertake, promise and agree, to save and keep harmless the said Kate Burns, from any and all liability of whatsoever kind or nature, by reason of her having transferred the said stock to me, and caused the transfer thereof upon the books of tbe company. Done at Colorado Springs, •Col., Jany. 5, 1897.”
“Victor, Oolo., Jany. 22nd, 1897. Mr. Frank G. Peck, Colorado Springs, Colo. — Dear Sir: Your letter of yesterday at hand. The tunnel is not for sale at five times your offer. The stockholders of the Portland has receipts for all stock which I have received, and I see no occasion for signing the papers [Exhibit 30, release to Kate Burns, and Ex. 14, receipt to J. F. Burns, referred tó in letter of January 20th] you request. Yours truly, James Doyle.”
It is also claimed that plaintiff .wrote to Peck the following letter:
'“Victor, Colo., Jany. 21st, 1897. Frank G. Peck, Colorado Springs, Colo. — Dear Sir: Your letter with reference to receiving' certificates I left with you at the Portland at hand. In reference to signing receipt for all Portland Stock that belongs to me in the name of Kate Burns, trustee, I am reluctant to inform you that I cannot sign it, as there were a large number 'of shares held by her in trust, that belonged to me, which is well known, at least to Mr. Burns. Very respectfully.” (Unsigned.)
The receipt of this letter is denied by Peck.
All these matters were objected to, but the objections were overruled, and, as we think, properly.
There are no other rulings which seem to be erroneous, and, but for matters to which wn shall hereafter refer, we should not feel like reversing the case on account thereof. Much that has already been said, and a great deal of what follows, is for the direction of the. trial court on a retrial of
VI. Many r filer instructions are complained of. We shall not set them all out, as to do so would unduly extend an opinion already too long.
The two points most relied upon here are that, under the instructions, plaintiff was entitled to recover the value of shares of stock which were never received by .him, or, if received, were disposed of with plaintiff’s consent, in such a manner as to dispose of the notion that they were converted, ■and that, in any event, plaintiff was permitted to recover more than he was entitled to under the allegations of his petition. The second point relates to the correctness of the instructions with reference to the measure of damages.
The first point relates largely to a question of mathematics, which we do not feel called upon to determine at this time. Of course, defendant cannot, in this action, be held liable for stock he did not receive, nor can plaintiff recover for stock which was disposed of by defendant with his knowledge1 and consent. Under a proper showing, he might, perhaps, recover his proportion of the proceeds received by defendant for the stock so disposed of, on the theory of money had and received for plaintiff’s use and benefit, as in assumpsit, but there would be no conversion of the stock. This much is all that need be said now regarding the first point. We shall refer to the matter again in one of its phases, before
In addition to this, there may also be recovery of interest and dividends. That is to say, plaintiff is entitled to the dividends received by the defendant upon the stock from the tinie he received it down to the time the value of the stock is fixed by' the jury, with interest thereon at the legal rate from the time of the receipt of the dividends down to the time of the trial. This for the reason that, until the value of the stock is fixed for the purpose of determining the plaintiff’s damage, he was entitled to the dividends earned from time to time, for the property was his, under all circumstances, until that time. After the value is fixed, and the amount awarded is paid, the title to the stock passes to the defendant, by relation back to the time when the value is determined, and from that time on he is, to all intents and purposes, the owner of the stock. As to interest on the value of the' stock itself, plaintiff is entitled thereto, at the legal rate, from the time the value of the stock is fixed down to the time the verdict is returned, for the reason that he is at that time entitled to the money value of the stock, rather than to tire stock itself, in such an action as this, and the debt being, by operation of
VIII. Other questions likely xo arise on a retrial, we shall now proceed to discuss
Defendant’s plea of estoppel has already been .considered,, and we need not give it any further consideration.
As to the affidavit filed to secure the patent for the Tidal Wave claim, the principles of larv are much the same as those just outlined. Defendant relies chiefly on Ainsworth v. Miller, 20 Kan., 220. But in that case there was a contract between Miller and Ainsworth, whereby Miller was to enter land in violation of section 13 of what was known as the homestead act of 1841 (Act Sept. 4, 1841, chapter 16, 5 Statute 456), swear that Ainsworth had no interest in it, and then convey the land to Ainsworth. Ainsworth paid part of the money which was used in making the entry, and Miller mado the affidavit required by statute, which was false. A controversy arose between Miller and Ainsworth over some of the property, and the court held that, since Miller had obtained title pursuant to a false affidavit, and in violation of an express statute, he could not recover. In the instant case there is no statute requiring such an affidavit as Doyle made, and there is neither allegation nor proof that plaintiff and defendant entered into any agreement to procure title or patents to mining claims through fraud or deceit. Even the
The strong point here against appellant’s contention is that no one contends that the agreement between these parties contemplated the making of false affidavits .or the pursuit of any other illegal means for the purpose of obtaining either title to these claims or to the proceeds thereof. Doubtless, if such an agreement were shown, the court would be justified in dismissing plaintiff’s claims, and in refusing to recognize them, even if there were no pleading interposed by the defendant raising this issue. But no such agreement is shown.
The maxim, “Dx dolo " etc., on which appellant relies, does not apply where the right of a third party is to be affected. Thus, although A. obtains' property from B. by fraud, he may nevertheless recover the purchase price from C., to whom he has sold the goods. This is pointed out, and the
X. We have now done with the case, and need only say in conclusion that we find no such misconduct of counsel upon the trial as would have justified a reversal. Time and again we have gone over this long record, and the very extensive and able briefs of counsel, and have given the case the care and attention its magnitude demands. The verdict is undoubtedly the largest one ever returned in the state. The case has been tried from the beginning with commendable zeal and very unusual ability. Prom the original statement made at the beginning of the opinion, it might appear to be a comparatively simple action for conversion. But he who has cared to follow the mazes of this opinion has discovered many intricate and troublesome problems, some of which are doubtful because of the wealth" of authority, and some because of the dearth thereof, but all or nearly all interesting and sufficiently perplexing to trouble the mind of any lawyer or judge.
Having now considered every point of importance, or that is likely to arise upon a retrial, we reach the conclusion that the judgment should be, and it is, reversed.