27 Minn. 102 | Minn. | 1880
The claim of plaintiff is based on the agreement, in 1876, between him and the defendants Kittson and Hill, by which the parties to it agreed “that they would jointly undertake, for their joint, mutual, and equal interest, benefit, advantage, and profit, the purchase of” bonds issued by certain railroad companies; “that neither of them would be required to raise or furnish any funds in said enterprise, but the same could be procured from or through said Smith,” (one whom Kittson represented he could procure to furnish, by way of loan, the necessary funds;) “that the said Kittson might use or give to the said Smith, or other furnishing the desired funds, a two-fifths, or 40* per cent., interest in said purchase to be made, should it become necessary to do so in borrowing or procuring the necessary funds to carry out said enterprise; but that three-fifths or 60 per cent, interest- in said enterprise and undertaking should be reserved for this plaintiff and said Hill and Kittson — that is to say, one-fifth, or 20 per cent., for each — for their mutual and equal advantage, profit and protection;” and that, subject to said understanding and agreement, “the details of the negotiation for the procuring of the necessary funds, and for the purchase of the said bonds, should be principally conducted and managed by the said defendants Hill and Kittson, and such person or persons as a minority interest in said enterprise .might be given to in procuring the necessary funds therefor; and that plaintiff should render such aid or assistance therein, from time to time, as should be required of him, and he. be able to give.”
The transaction, the fruits of which plaintiff seeks to appropriate to the foregoing agreement, is stated in the com
Prima fade, the arrangement with Smith and Stephen did not belong to the performance of the agreement between plaintiff and Hill and Kittson. It had no authority from the agreement to support it. It was materially different from any arrangement that agreement contemplated. Plaintiff was not bound by it under that agreement, nor could he claim the benefit of the arrangement as made under that agreement. If, without any new agreement with Hill and Kittson, he could claim the benefit of the arrangement, it could be only through a right to ratify it and a ratification of it. Of course, in ratifying it, he would have to accept it entire — its benefits with its burdens; its advantages with the disadvantages. Plaintiff does not claim any ratification. He still distinctly insists upon his right to repudiate the giving of three instead of two-fifths in the bonds to be purchased, to Smith and Stephen, so far as it may affect him.
But a more important matter is the right to ratify. Except where the principle of estoppel applies — and that is not this
Whether the relations of Hill and Kittson with plaintiff ■were of such a character that they could not make the arrangement with Smith and Stephen except for his benefit, as well •as their own, depends on their contract with him.' That contract created a relation of confidence between the parties to it in the matter of the enterprise they agreed on. Out of it there grew a duty on the part of each to the others, with which a negotiation for money to purchase bonds, and the purchase •of bonds, on his own account, might be inconsistent. Where, in such case, one acts for his own benefit, inconsistently with his duty to the others, such others may treat such acts as
After the filing of the foregoing opinion, the plaintiff moved for leave to amend his complaint, and, after argument, the following opinion was filed:
There were two separate demurrers to the complaint. The court below sustained one demurrer and overruled the other. Plaintiff appealed from the order sustaining the demurrer, and the defendants whose demurrer was overruled appealed from the order overruling their demurrer. This court affirmed the order sustaining the demurrer, and reversed the other. Plaintiff now moves this court to modify its judgment on the orders appealed from, so as to give him leave to amend his complaint in the court below.
We have no doubt of the power of this court to grant the relief asked for; but it ought to be rarely exercised. It is a matter resting in discretion, — a discretion to be guided not alone by the character of the pleadings, but also, in some instances at least, by the prior proceedings in and conduct of the cause. On such appeals as these, only the pleadings and orders come here. We ordinarily know nothing of what other proceedings have been had in the cause. The court below is supposed to know what has been done up to the decision of the demurrers. There is great reason, therefore, why the court below, when the case is remanded, and not this court, should, as a general rule, determine whether a party may have leave to answer or to amend.
Motions denied; but, as this court does not consider their merits, it will be without prejudice to any application which may be made for leave to amend in the court below.