79 P. 556 | Utah | 1905
Plaintiff brought this action to recover from defendants $9,680 and interest; alleging that defendant Bothwell had received as trustee for plaintiff said amount, and that said defendants held and converted the same to their joint use. Defendants deny the trust and deny the conversion, and set up that said money was received by Bothwell as trustee for the Geyser Mining Company, and paid out according to the trust. The controversy arises out of certain contracts between plaintiff and defendants concerning certain property situate at Mercur, Utah, and which property finally became the property of the Geyser- Marion Gold Mining Company. The money was received by Both-well as dividends from the Geyser-Marion Gold Mining Company on stock owned by Gisbom, and held by Both-well as trustee to receive the dividends and pay the same, or so much thereof as was necessary, to the Gey ser Mining Company, for the purpose of paying. the debts of the Geyser Mining Company. Bothwell, as trustee, paid the amount to the Geyser Mining Company, and the Geyser Mining Company paid the same to Milner and Bothwell on the item of $7,056.90, hereinafter referred to, and interest on said amount. In the court below, judgment was rendered in favor of the defendants.
The first contract is known as that of August 27, 1894. By this contract Gisbom, as party of the first part, agrees to sell to Milner and Bothwell, as parties of the second part, an undivided one-half interest in certain mining claims at Mercur, Utah, upon the following terms and conditions, to-wit: $1,000 cash, the receipt of which was acknowledged. The second parties agree to advance the necessary money and furnish bonds with said first party to start and keep in progress any suits at law deemed necessary to protect the rights of parties to said contract in certain mining claims described. Second parties also agree to advance money needed to develop mines so that a sufficient amount of ore will be ready at the completion of a certain mill mentioned.
The second contract is that of December 21, 1894. Bothwell and Milner, parties of the first part, lease to G-isbom, party of the second part, an undivided one-
The third contract is that of April 20, 1895. This contract recites the' incorporation of the Geyser Mining Company, and the conveyance to it of the mill and mining property mentioned in the two' former contracts. It provides for the cancellation of the lease of December 21,1894, and the giving of a new lease in lieu thereof by the Geyser Mining Company. The contract also contains the following paragraph, to-wit:
“And it is further understood and agreed that the said Geyser Mining Company assume and agree to pay out of the profits of said company no debts, except the sum of ten thousand dollars due for mill and any unsettled litigation expenses now owing by said Gisborn and said Bothwell and Milner, and the account of said Bothwell and Milner for money advanced for litigation and development, etc., amounting to' the sum of $7,056.-90, as per their contract dated August 27th, 1894. ’ ’
The other errors complained of by plaintiff grow out of the construction placed on those words by the
We find no error in the record. The judgment is affirmed, with costs.