11 Mont. 109 | Mont. | 1891
The object of this action was to obtain a dissolution of copartnership; an accounting between the copartners, and also a partition of certain mining claims; but the question of partition was abandoned by the consent of all parties, and the action proceeded as to the other purposes.
The evidence introduced at the trial, and the findings of fact by the court, are before us for review on appeal from the judgment, and from an order overruling appellant’s motion for new trial.
It appears from the evidence and findings of fact that certain mining claims were owned in equal undivided interests by plaintiff and Chapman and Thompson; that said owners engaged in a copartnership arrangement to do certain development work upon said mining claims, at the expense of said owners in equal proportions. The object of said development work was to put the mining claims in salable condition; but
Upon the trial the court found that on said thirtieth day of June, 1887, a full accounting and settlement was made as to the partnership affairs between plaintiff Galigher and Chapman and Thompson, and that Galigher paid his proportion of expenses incurred prior to that date, and that defendant Lock-hart paid for Chapman and Thompson their full share of expenses incurred in developing said mining claims prior to said date, except the compensation claimed by said Galigher for his services. The court further found that on said date plaintiff Galigher was notified by defendant Lockhart that he would not carry on the partnership operations any longer, and that he would not be liable for any debts or expenses contracted by said Galigher in working upon said mining claims.
These findings are fully supported by undisputed evidence, which shows that, at the time said notice was given, defendant had examined said property, and settlement of all prior expenses was made as aforesaid, except the claim of plaintiff for services, and plaintiff was then informed by defendant that he was satisfied the property being developed was not worth anything; that defendant advised shutting down work thereon, and declared he would not prosecute the work any further, and would not be responsible for any further expenses. Plaintiff’s reply to said notice was that he proposed to continue work on said claims, and that he would endeavor to make defendant pay his proportion of the expense thereof.
Appellant contends that, under said state of facts disclosed by the evidence and findings of the court, it was error for the
"We think appellant’s position upon this point is fully sustained by principles of law, and we so hold. (Carter v. Whalley, 11 Morr. Min. Rep. 262; Slemmer’s Appeal, 11 Morr. Min. Rep. 441; Crawshay v. Maule, 11 Morr. Min. Rep. 223; Vice v. Fleming, 11 Morr. Min. Rep. 241.)
Respondent’s counsel cites no cases which support the converse of appellant’s proposition, if, indeed, any cases could be found to support that position. The trial court virtually held as we do, in another conclusion of law, wherein it was held that the partnership was dissolved in January, 1888, by defendant giving “public notice of the repudiation of the said contract and partnership.” The public notice could have had no more potency, as affecting the rights and relations of the partners themselves, than a private notice. It follows that the judgment ought to be so modified as to eliminate therefrom all charges against defendant involved in working said mining claims subsequent to June 30, 1887.
Another point insisted upon by appellant is that the court below erred in holding appellant liable for salary to plaintiff for services during a period prior to the time appellant came into said copartnership. This was error for two reasons: First. There was no showing that it was ever agreed in reference to said partnership arrangement that plaintiff, one of the copartners, and an owner in common of an interest in said property, should receive compensation for services which he might render in and about said work. This charge could only be sustained against his copartners, Chapman and Thompson, by virtue of a special agreement to that effect. (2 Bates on Partnership, § 770; Parsons on Partnership [3d ed.], 250; Babcock v. Stewart, 11 Morr. Min. Rep. 447.) Upon this point, it appears that the same rules apply to mining as to other partnership compacts. (Duryea v. Burt, 11 Morr. Min. Rep. 395.) Secondly. The charge for services of plaintiff rendered prior to the time appellant came into said copartnership could not lawfully be maintained against appellant unless he assumed and agreed to pay
We do not find reason for disturbing any other findings of fact or conclusion of law made by the court below, which appellant insists were erroneous.
According to the findings and conclusions of law not disturbed, the account between plaintiff and defendant stands as follows: Defendant should be charged with two thirds of the $250 paid by plaintiff, or for which he became personally responsible, in defending the title to said property, namely, $166.66; and this is the only item remaining against defendant, according to the findings sustained. According to the findings, defendant should be credited with items as follows: One third of $504.50 paid out by defendant on debts of the firm existing prior to the time he became a member, one third of which, or $168.16, is rightfully chargeable to plaintiff; also with two thirds of $400 worth of goods and provisions of the firm, which plaintiff took and converted to his use in working said claims after June 30, 1887, two thirds of which was the property of defendant, valued at $266.66, and for which defendant should be credited in this accounting. Defendant should also be credited with two thirds of the value of $311 worth of property of the firm taken under attachment for debts contracted by plaintiff after June 30, 1887, two thirds of which, or $207.32, was the property of defendant, and should rightfully be credited to him in this accounting. All these credits in favor of defendant aggregate the sum of $642.14, from which should be deducted two thirds of said $250 expended by plaintiff in defending the title to said property, viz., $166.66. This deduction leaves a balance of $475.48 in favor of defendant. In other words, as
It is therefore ordered that the judgment rendered by the trial court be reversed, and that judgment be entered in favor of defendant and against plaintiff for the sum of $475.48, and costs.
Reversed*