217 P. 1087 | Wyo. | 1923
This case is here on error, and was heard upon a motion to strike the bill of exceptions and also at the same time on the merits. The motion to strike the bill will be denied for reasons to be stated in an. opinion by the Chief Justice.
In April, 1915, the parties involved in this suit embarked upon a joint adventure. Mr. Waltemeyer, a geologist, interested another geologist, Ralph Arnold, of California, in the development of the Big Muddy Oil Dome in Wyoming. It was agreed that those participating in the joint adventure should share in the profits in the following manner; Those furnishing the capital were to receive 50%, and those doing the labor in the field were to receive 50%. Mr. Arnold interested the defendant, Julius Fried,
After the sublease was made to Humphreys, Mau wrote a long letter to Arnold, Whitley, Guiberson, Fried and Waltemeyer, in which he defined what he considered to be the interest of each and all of them. It fully appears from the testimony that Humphreys knew of the contentions among the members of the syndicate and immediately after obtaining the subleases from Mau proceeded to procure a ratification of the sublease from the members separately. Humphreys knew that Fried and Waltemeyer were objecting to Mau dealing with their interests, and
Thereupon this suit was started by Guiberson in the district court of Converse County to compel the defendants Fried and wife to account for any and all moneys and property that they had acquired more than an undivided % interest in the leases, and the effect of the prayer of the petition is that the defendants be declared to hold in trust for plaintiff an undivided three-sixteenths (3/16) interest in the rights obtained by them from Humphreys in said sub-lease, and required to account for all they have acquired by means of asserting more than a one-fourth interest in said leases. The district court, after a full hearing, entered its decree for the plaintiff, in which judgment and decree it is recited, in substance and effect, that Guiberson is the owner of.a 3/16 interest in that portion of the Mau lease assigned to Fried and wife, said interest being held in trust for him by said defendants, and directed that they convey and assign said interest to the plaintiff, and that in default thereof the decree shall operate as such conveyance and assignment; also that they assign to plaintiff an undivided 3/16 interest .in all bonus money held in trust for him under Humphreys ’ said assignment to defendants. From that judgment said defendants prosecute this proceeding in error.
It is admitted by all the parties in this case that it is an action involving a joint adventure. We are therefore concerned with the principles of law governing joint adventures. While a joint adventure and a partnership relation are not identical, yet they are governed largely by the same principles of law. As was stated by this Court, “A
Perhaps one of the most important things to investigate in this case is the action of each adventurer toward the other and the question of his good faith in the premises. That is, did the co-adventurers, in the eyes of the law, conduct themselves toward each other and their trusts in such a manner in the disposition of his or their interest so that no one was misled ? For it is the duty of a co-adventurer, as well as partners, to observe the utmost good faith toward each other in all their dealings. Co-adventurers occupy a fiduciary relationship among themselves and within the scope of the business of the enterprise, and the conduct of all transactions or negotiations must be such that all are in good faith and no one is misled. 22 Am. & Eng. Ency. of Law, 114; 30 Cyc. 454.
What, then, was the situation with reference to Guiber-son’s claim for an interest in the sublease that Humphreys made with Fried? And this'is all that we are concerned with, because there are no other parties to the suit, although Waltemeyer joined in the sublease with Fried and Humphreys and obtained a part of the consideration for that sublease.
During all of the time that Humphreys was negotiating with Mau fpi’ the Glenrock Sheep • Company and Fenex leases, Guiberson, Mau and Fried were fully advised of what each were claiming in the joint adventure, because it was before this time that Fried and Waltemeyer had revoked the power of attorney previously given to Mau,- and Guiberson had demanded of Fried an interest in the Glenrock Sheep Company and Fenex leases. Mr. Guiber-son, testifying in his own behalf with reference to the rati
Q. At that time the property known as the Glenrock Sheep Company and Fenex leases were standing in the name of Charles A. Mau as trustee, were they not ?
A. Wliat date?
Q. Fall of 1916. A. Up to July 1st, yes.
Q. Now, at that time your own claim was for an undivided one-eighth interest in and to those lands, wasn’t it?
A. Up to that time?
Q. You had served him notice at his request and suggestion, claiming that interest, I believe you said, and the letter is in evidence.
A. I simply put in writing what I made — the verbal demand I made at Casper.
Q. And you said Mr. Mau agreed with you that the lease stood in his name and he would see that you got that interest ?
A. Said he would not make any assignment and that he would not lease without clearly setting forth what my rights in that lease would be.
Q. Well, Mr. Mau kept his word, did he not, when he made his lease to Mr. Humphreys ? A. He did.
Q. And told Mr. Humphreys exactly what your interest was ?
A. In that letter, yes.
Q. Then you have ratified that Humphreys lease, have you not?
A. I did under the conditions that it looked as though if I didn’t the lease was going to be lost.
Q. So to serve your own best interests as you saw it, you ratified the lease ?
A. I wasn’t looking out after anybody else at that time.
It therefore clearly appears from the testimony of the plaintiff himself that he did ratify the lease to A. E. Hum-phreys of his own free will and accord; that he made the deal knowing what Fried’s claim or interest in the Glen-rock Sheep Company and Fenex leases was, and after having-disposed of all of his right, title and interest in the property, we are confronted with the question as to what right he now has to complain of what the defendant Fried procured from Humphreys for his ratification of the lease. All of the co-adventurers were dealing, so to speak, at arms length; each asserted the right to dispose of his own interest-as he saw fit and to obtain the best price possible therefor. Ye are unable to see how it is that one co-adventurer can dispose of his interest to what he considered his own best advantage and then compel a co-adventurer to account to him because a better deal was made or a better price obtained. This, of course, would not be true if a co-adventurer was misled, misinformed, or a breach of good faith in any manner shown.
It must be remembered that in this whole transaction, Fried did not presume to act for Guiberson in any capacity, trustee or otherwise. Fried asserted his right to sell his interest ini the joint adventure, to whom, and for a price satisfactory to himself. True, Fried was claiming more of an interest than Guiberson thought he had. But Guiberson ratified the sublease of Mau to Humphreys, and
It is generally held that a partner may dispose of his interest to a third person. 30 Cyc. 458. And we see no reason why a joint adventurer is not able so to do. In Jones v. Way, 78 Kans. 535, 97 Pac. 437, 18 L. R. A. (N. S.) 1180, the court said:
‘1 The main contention is that the plaintiff had no right to buy an interest in the partnership without the consent of all the other partners, and such seems to be the theory upon which the judgment was rendered. To this we cannot agree. The interest of each partner in the partnership property is his share of the surplus after payment of all partnership debts and settlement of all accounts between himself and his partners. Sanborn v. Royce, 132 Mass. 594; Nicoll v. Mumford, 4 Johns. Ch. (N. Y.) 522. A partner may dispose of his interest in the partnership to a third person. The only limitation on this right is that he cannot by such transfer introduce the purchaser into the firm without the consent of the other partners. 22 A. & E. Enc. of Law, 104, 105, and cases cited. In equity the purchaser acquires the right to call for an accounting and settlement. Bank v. Carrollton Railroad, 78 U. S., 11 Wall. 624, 20 L. Ed. 82.”
Treadwell v. Williams, 22 (N. Y.) Sup. Ct. 649; See also Farmer’s Saving Bank v. American Trust Co., 196 S. W. 35 (Mo. App). And in Williamson v. Dawson, 272 Pa. 370, 116 Atl. 297, a member of a joint adventure who sold his interest to another was held not entitled to an accounting where no fraud was shown. See Rankin v. Kelly, 163 Ky. 463, 173 S. W. 1151. In Goodwin v. Smith, 144 Ky. 41, 137 S. W. 789, Goodwin obtained a valuable oil lease by arrangement in the name of Smith. The court said:
*163 ‘‘The second amended petition alleges that, under the direction of appellant, appellee transferred to him a one-fourth interest and to Dunbar and Meredith a one-eighth interest each. This, according to the petition, represented his entire interest in this partnership holding, and completely settled and disposed of the partnership feature of the transaction. After the transfer to Dunbar had been made the only interest that appellant had in the matter was to see that the $250.00 which Dunbar had agreed to give for this interest was paid. It is immaterial to him what Dunbar did with his interest. He had a perfect right to transfer his bid and purchase to any one with whom he could make satisfactory terms, and appellee was under no obligation whatever, in buying this interest for which Dunbar had contracted, to take the title thereto as trustee for the use and benefit of appellant. He had a perfect right to buy for himself. Appellant only claims to have owned a one-half interest in the lease. When he had transferred these interests as directed by appellant he had fully discharged his duty as trustee, and hence, in purchasing the interest for which Dunbar had contracted, he violated no duty to appellant.”
We find nothing in the record that in any way prevented Fried from dealing with his own interest as he saw fit. Accordingly the judgment of the district court is reversed and it is ordered that the cause be remanded with directions to dismiss the petition of the plaintiff.
Reversed mid Remanded mffi Directions.
The substance of the several objections included in the motion to strike the bill of exceptions from the record is that the bill was not presented for allowance within the time required by law. The judgment complained of was rendered upon a trial of the cause without a jury on May 29, 1920. A motion for a new trial duly filed, stating as
“The party objecting to the decision must except at the time the decision is made, and shall have sixty days from and after the date of the judgment, decree, or final order in'the case within which to reduce the exception to writing and present the same to the court or judge for allowance. If within said sixty days the party excepting shall make it satisfactorily to appear to the court or judge authorized to allow the bill of exceptions that the party will be unavoidably prevented from presenting the bill within said time,*165 the court or judge by written order may extend said time, but not to exceed sixty additional days. ’ ’
The date of the expiration of the first period of sixty days under that statute, in this ease, was December 20, 1920, and sixty additional days might be granted, or up to and including February 18, 1921. The bill shows the motion for a new trial aforesaid, that it was filed within the time required by law, that it was heard and overruled on the date above mentioned, and that the defendants, plaintiffs in error here, excepted to that ruling. The order overruling the motion also states that the defendants ‘ ‘ are given up to and including the 19th day of December, 1920, within which to file their bill of exceptions.” But the statute granted until December 20 without an order, and that time could not be reduced to the exceptant’s prejudice. Morgan v. State, 26 Wyo. 212, 181 Pac. 598. Nor do we think a reduction was intended. The date stated in the order was probably the result of an error in computing the statutory period. The history of the bill as shown by its recitals is as follows: On December 20, 1920, upon an affidavit and motion of the defendants below filed on December 17th, 1920, an order was made by the trial judge (Judge Kimball), then also the judge of the said district court, extending the time up to and including January 15, 1921. On January 13, 1921, an affidavit and motion of the defendants for a further extension of said time was filed in said court, and on that date an order was made by the trial court, Judge C. O. Brown presiding, he having become the judge of said court by appointment as the successor of Judge Kimball upon the latter’s appointment and qualification as a justice of this court, granting a further extension of time up to and including February 15, 1921. That order is shown by a recital in the bill and also by a transcript of the journal entries in the cause, each showing it to have been a court order. This, we think, shows an authorized extension of the time for presenting the bill up
The following endorsements appear on the first page of the bill: 1 ‘ This bill of exceptions presented to me on February 12, 1921. Ralph Kimball, Trial Judge.” “This bill of exceptions presented for allowance February 14, 1920. C. O. Brown, Court Judge. ’ ’ On page 331 of the bill, following what appears to have been the bill as originally presented, appears a certificate signed by Judge Kimball as the trial judge, dated May 20,1921, and reciting: “The attorneys for defendants having, on the 12th day of February, A. D. 1921 and within the time allowed by the order of court within which defendants should present their bill of exceptions in said cause, presented to the undersigned before whom said cause was tried their bill of exceptions in said cause and ashed that same be allowed and filed # * *, and it appearing to said Trial Judge that some of the exhibits introduced in evidence upon the trial were missing from said bill of exceptions, and also missing from the court files, the approval of said bill of exceptions was withheld and counsel directed to locate if possible the missing exhibits and incorporate same in said bill of exceptions. And said bill of exceptions having again on the 13th day of May, A. D. 1921, been presented to the undersigned for allowance and it appearing that said exhibits are now incorporated within said bill of exceptions, but that upon comparison of the bill of exceptions with the
On page 327 of the bill appears a certificate, of Judge Brown, reciting May 17, 1921, as its date, allowing the bill upon its appearing that the exhibits formerly missing from the bill had been incorporated therein. Immediately following the certificate of Judge Kimball aforesaid of May 20, 1921, it is recited in the bill: “Amendment of Defendant’s Bill of Exceptions. The foregoing bill of exceptions having been presented to the trial judge for approval and allowance, which approval Avas withheld for the reason that the narrative form in which the testimony and proceedings were abstracted did not contain all of the evidence as shown by the original transcript in said cause and the depositions offered upon the. trial, defendants submitted the following amendments to said bill of exceptions in the form of the original transcript of the testimony and proceedings had upon the trial of said cause and the original depositions of Charles A. Mau and Ralph Arnold introduced at said hearing.” And following that appears what is entitled “Transcript of Oral Testimony.” Then folloAvs the final certificate of Judge Kimball as the trial judge, alloAving the bill. That certificate repeats the recitals of his former certificates to the effect that the bill had been presented within the time allowed by the order of the court; that approval thereof was withheld because of the omission of some of the exhibits which were also missing from the court files, and counsel directed to locate if possible said exhibits and incorporate them in the bill; that the bill was again presented on May 13, 1921, whereupon, it appearing that the exhibits theretofore missing had been incorporated in the bill, but that upon eompari-
The above facts recited in the bill clearly show, in our opinion, its timely presentation, and that its withdrawal thereafter was solely for the purpose of correction as permitted by the statute, which provides that “if the writing is not true, the court or the judge in vacation shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid.” Compiled Statutes 1920, § 5867. The statement in the certificates subsequent to the withdrawal of the bill on the occasions mentioned, that it was “again presented” is not to be understood as destroying the effect of the original presentation of the bill or as a corrected date of such presentation. For it is very clear from the recitals and the certificates that the bill as presented was directed to be withdrawn for correction or amendment only, the court or judge retaining control of it under its original presentation until it was finally approved, settled and allowed.
‘ ‘ The statute contemplates that a bill may require correction before allowance and signing and expressly permits .the court or judge, if the writing be not true, as presented, to correct it or suggest the correction to be made, and then to sign it. We observe nothing in the statute which requires that a bill presented in time shall be ready for signing before the expiration of the time granted for reducing the exceptions to writing. It may be conceded that it is the duty of a party * * * to prepare and present a bill fairly and fully setting forth the facts upon which the rulings of the court excepted to were made; and that the draft so presented should state all the evidence, as he understands it, upon which the verdict or findings were based, where the exception is to the overruling of a motion for a new trial on the ground that the verdict or findings are not supported by the evidence; and we think such a duty does rest upon the exceptant. * # * It cannot, however, be doubted that, if all the facts are not set out in full or as the court or judge understands them, or if all the evidence is not embraced in the draft as pre*170 sented, where it should be embraced to properly explain the exception, the court or judge may make or cause the necessary corrections to be made to conform the bill to the truth, not only by changing incorrect statements of fact, and striking out matters improperly included, but by adding omitted evidence. # #
We think that was all that was done in this ease by the correction and amendment of the bill under the direction of the court before its allowance. The point made with reference to the transcript of the testimony in the bill, that it is not authenticated as official by the certificate of the court reporter, is not a good objection to the bill, the court having accepted it as containing all of the evidence. As this court said in Fishback v. Bramel, 6 Wyo. 293, 44 Pac. 840: “In this court the certificate of the stenographer furnishes no vitality to a bill of exceptions. It may have been persuasive upon counsel and the court in the matter of settling and allowing the bill, but it is otherwise unimportant, so far as the verity of the bill is concerned. The law has required the bill to be otherwise signed and authenticated.” The same in substance was said also in Seng v. State, 20 Wyo. 222, 122 Pac. 631. And see Koppala v. State, 15 Wyo. 398, 89 Pac. 576; 93 Pac. 662.
Motion to Strike Denied.
