11 Mont. 390 | Mont. | 1891
This action was brought to recover a judgment for the sum of fifteen thousand dollars on account oí the sale of certain lode mining claims to Thomas Couch, and for the sale of property which had been conveyed by Couch to the Boston and Montana Consolidated Copper and Silver Mining Company. No general verdict was requested by the court or any of parties, and the jury returned the following special findings:—
“The jury in the above-entitled action will find a special verdict by answering the following questions: (1) Were the plaintiffs and the defendant, John Lloyd, engaged jointly in working and developing the mines mentioned in the complaint, known as the c Harris and Lloyd tunnel property,’ from the
The following findings were submitted by the court on its own motion: “ (1) Did John E. Lloyd, before or at the time that the contract and deed for the property were signed, inform the plaintiffs that he was to receive the additional thirty thousand dollars on the sale? Answer. No. (2) Did John E.
The two following special findings were requested by defendant, and also submitted to the jury: “ (5) Did the defendant, John E. Lloyd, in any manner whatever, induce the plaintiffs to accept at the rate of one hundred thousand dollars for their interest in the property described in the complaint? Answer. No. (6) Did the defendant, John E. Lloyd, at any time or at all, make any false representations to the plaintiffs whereby they were induced to sign the contract with Thomas Couch for the sale of the property described in the complaint? A. No.”
The court afterwards made its findings of fact and conclusions of law therein as follows: “This cause having been tried to a jury, which has returned special findings of fact in answer to requests submitted therefor, and having been submitted to the court, on motion of plaintiffs, for judgment and decree on the pleadings, evidence, and findings herein, the court, as chancellor, makes the following findings of fact, and accepts, confirms, and approves the findings of the jury in so far as their findings are embraced and herein iueluded, and rejects and sets aside such of the findings of the jury as are not embraced herein;
"1. That the plaintiffs and defendant, John E. Lloyd, were for a period of more than eight years prior to the month of March, 1888, co-owners and tenants in common, in the proportions mentioned in the complaint, of the mining property described in the complaint, and known as the ‘Harris and Lloyd tunnel property.’ (2) That during all of said time they were engaged jointly in working and developing said property, with a view of extracting ores, and of selling said property, and the owners did during said time jointly perform work and labor and expend money of the total value and amount of about twenty thousand dollars ($20,000) thereon. (3) That they each contributed a proportionate share, according to their respective interests, in the working of said mining property during said time, and shared proportionately in the profits and losses incurred or accruing from said work. (4) That the above relations of the parties to each other regarding said property continued up to and existed at the time the contract of lease and sale mentioned in the complaint was entered into, although they had ceased work on said property some two or more weeks before that time. (5) That the defendant, John E. Lloyd, did, on or about the nineteenth day of March, 1888, and before the thirty-first day thereof, make a proposal to, and enter into an agreement with the defendant, Thomas Couch, to sell to him all of the said property, and by which agreement the defendant Lloyd was to receive thirty thousand dollars ($30,000) in addition to the one hundred thousand dollars ($100,000) mentioned in the contract, lease, and deed, as he claimed, for signing the deed for his share and that of his brothers; which agreement for the additional thirty thousand dollars ($30,000) was without the knowledge or consent oí the plaintiffs, and which agreement he concealed from them. (6) The defendant Lloyd never informed either of the plaintiffs of the existence of said contract for thirty thousand dollars ($30,000) additional at all j and the defendant Couch never informed either of them until the property was accepted and sold and the deed delivered, and they had no knowledge of the
Conclusions of law: “From the findings of fact the court finds the following conclusions of law: (1) That at the time of the contract for the sale of the property described in the
All the parties upon the trial conceded the right of the judge to treat the findings of the jury as advisory, and adopt or disregard any of them according to his conscience. Upon this hearing, however, the appellants contend that this power cannot be exercised under the Constitution and laws of this State; but under these circumstances we decline to enter this field of research. We shall assume, for the purpose of this investigation, that the court below had the jurisdiction to act independently of this verdict, and make its own findings of fact. We are therefore compelled to ignore the action of the jury and •confine our inquiry to the proceedings of the court. In Stockman v. Riverside etc. Irrigation Co. 64 Cal. 57, Mr. Justice Ross for the court said: “It is insisted on behalf of the appellants that, as the findings of the court upon some of the material issues are contrary to the findings of the jury upon the same issues, this court should, notwithstanding a substantial •conflict of evidence upon those issues, proceed to weigh the evidence, and decide whether it preponderates in favor of the findings of the court or of the jury. To this we cannot assent. The findings of fact by the court are as conclusive here as they would be if no jury had been impaneled in the case. The question for us is whether there is sufficient evidence to sustain .the findings of the court upon the material issues. .... It has often been held here that the verdict of a jury in an equity • case is but advisory to the court, and in this case it appears to have been the understanding between the parties that it was to be regarded in that light only.” (Hayne on New Trial and Appeal, § 234; Freeman v. Stephenson, 63 Cal. 499.)
It is our duty to review the testimony, and determine
The mining property which is described in the pleadings was owned and developed by the parties as tenants in common for the period of eight years prior to March 31, 1888. Each of these persons during this time paid his share of the debts which were incurred, and said John E. Lloyd was never the agent of any of the respondents, and had no authority to control or dispose of their interest. About two weeks after they had completed the work thereon, in March, 1888, and settled the expenses thereof, there was no contract for further mining or exploration. The owners then executed an agreement, whereby they covenanted to sell the property in consideration of the sum of one hundred thousand dollars. There is not a word in the testimony which tends to prove that the relations of these parties were of a fiduciary or any higher character than that of tenants in' common of the property when this agreement was entered into. The court below finds that said John E. Lloyd, by his fraudulent conduct and misrepresentations, induced the respondents to execute the instruments which have been referred to, and take their respective portions of the consideration of the sum of one hundred thousand dollars. When we weigh the' opinion of the court as well as the facts in connection with the evidence, it is apparent that these deductions have been drawn, not from direct and positive testimony, but from the-action of said Lloyd when signing, with his co-owners, said instruments, and his silence respecting his contract with Couch, whereby he was to receive the sum of thirty thousand dollars; in other words, the court has stated legal conclusions in the-form of the facts arising from its view of the obligations of the parties as mining partners and tenants in common.
A leading case is that of Matthews v. Bliss, 22 Pick. 48, and Chief Justice Shaw, as the organ of the court, says: “The gist of the action was the conspiracy of the three defendants, after-
There are some cases concerning the rights of tenants in common which do not affect the case at bar, although the respondents rely upon them. It is generally held that the purchase of a tax or outstanding title or encumbrance, or claim on the property by one tenant in common, inures to the benefit of all, although the decisions are not uniform in announcing the ground upon which this principle is founded. In Hurley v. Hurley, 148 Mass. 444, Mr. Justice Holmes cites many authorities to illustrate these distinctions, and says: a It wilí be
In Barnes v. Boardman, 152 Mass. 391, Mr. Justice Devens said in the opinion: “ The rule that, when tenants in common are actually in possession, or are entitled to immediate possession, a purchase of an encumbrance on the common property will generally be deemed to have been made for the benefit of all ii they shall consent to pay their proportional shares thereof, and that to this extent a certain fiduciary relation exists between the tenants in common, is one that is sustained by many authorities. (Van Horne v. Fonda, 5 Johns. Ch. 388; Flagg v. Mann, 2 Sum. 486; 4 Kent Com. [13th ed.] 371, and cases cited; 1 Washburn on Beal Property [5th ed.], 430, and eases cited.” See, also, the cases cited in the note to Barnes v. Boardman, supra, in 9 Law Rep. Ann. 571; Venable v. Beaudhamp, 3 Dana, 321; 28 Am. Dec. 83, and notes.) The respondents insist that each of the cotenants in lode mining property must labor for his and their interests in the same degree, and that what he does for himself is for the common good. This position is not sustained by the courts, and the cases we have examined do not modify the doctrine oi Matthews v. Bliss, supra, relating to the rights oí tenants in common in the sale of their interests in property. Their fiduciary relations are not created or enlarged ii they become mining partners. (Bissell v. Foss, 114 U. S. 252; Kimberly v. Arms, 129 U. S. 512.)
In Bissell v. Foss, supra, it is held that “there is no relation of trust or confidence between mining partners which is violated by the sale and assignment by one partner of his share in the company assets and business to one or more of his associates, without the knowledge of the other associates.” The statement of facts is lengthy, and must be omitted. In the opinion Mr. Justice Woods said: “ The contention is that these three parties were in such relations to each other that, if one bought a share in the common property and business, it inured in equity to the benefit of all, subject to the payment by each of the associates
The same views were reiterated in Kimberly v. Arms, supra, by Mr. Justice Field: “The case of Bissell v. Foss, 114 U. S. 252, does not seem to us to have any bearing on the subject under consideration. There the question was whether a member of a mining partnership — that is, a partnership formed for the development and working of a mine — could acquire the shares of an associate without the knowledge of the other associates, and hold them on his own account; and the court held that it was lawful for him to do so. Mining partnerships or associations, whilst governed by many rules relating to ordinary partnerships, have some rules peculiar to themselves. One oí such rules is that a member may convey his interest or shares to another person without dissolving the partnership, and thus bring into it a new member without the consent of his associates; and may purchase interest in the same, or any other mines, for his own benefit, without being required to account to the partnership for the property. (Kahn v. Smelting Co. 102 U. S. 641.) The partnership between Arms and Kimberly was not a mining partnership, in the proper sense of that term. It was not a partnership for developing and working mines, but for the purchase and sale of minerals and mining lands, and in that respect was subject to the rules governing ordinary trading or commercial partnerships. It can no more be called a mining partnership than a partnership for the purchase of the products of a farm, and the lands upon which those products are raised, can be called a partnership to farm the lands.”
We have quoted extensively from the foregoing cases by reason of the eminence of the jurists who delivered the opinions, and the clearness with which the law has been expounded. Their applicability to the case before us can be seen without
The court finds as a fact that the parties during a period of more than eight years were “engaged jointly in working and developing said property with a view of extracting ores and of selling said property; ” and also that these relations “ existed at the time the contract of lease and sale mentioned in the complaint was entered into.” The legal conclusion is that “ at the time of the contract for the sale of the property .... by Lloyd and others to Couch, a partnership existed between the parties owning the property with reference thereto, .... and they are entitled to share proportionately in the proceeds thereof.” These findings of fact are not within the issues, and cannot support a judgment.
The court in Dutro v. Kennedy, 9 Mont. 101, said: “Had the judge found and so decreed otherwise, the findings would have been disregarded as being outside of the issues. (Marks v. Sayward, 50 Cal. 57; Gregory v. Nelson, 41 Cal. 279.)” The court in Marks v. Sayward, 50 Cal. 60, said: “ The plaintiff contends that these facts are not within the issues, and we are of the opinion that this position must be sustained. There is nothing in the proceedings pointing to the existence of a partnership.” (See, also, Morenhout v. Barron, 42 Cal. 605; Devoe v. Devoe, 51 Cal. 543; Green v. Chandler, 54 Cal. 626.)
The complaint alleges: “ The plaintiffs, the defendant, John E. Lloyd, and their other said co-owners and tenants in common in the premises hereinbefore described, obtained and acquired title thereto a number of years ago, to wit, on or about the first day of September, A. D. 1881, with the intention and for the purpose of prospecting, developing, working, and mining the same, and to that end and purpose they then agreed among themselves and with each other to associate themselves together, and they and every of them did then enter into and form an association, company, and mining copartnership, whereby they agreed and undertook to develop, work, and mine the said
The court also finds that said John E. Lloyd, “by signing the deed and contract, selling for the entire consideration at on hundred thousand dollars ($100,000), and concealing the fact that he had an agreement for the payment of an additional thirty thousand dollars ($30,000), induced the plaintiffs to sign the contract and deed with Thomas Couch for the sale and conveyance of the property described in the complaint.” What are the allegations of the complaint concerning this part of the case? That John E. Lloyd and Couch, “ and each of said defendants, falsely and fraudulently, with the intent to deceive, cheat, and defraud the plaintiffs, suppressed the truth, and
It will be remarked that there is a conflict between these allegations and the findings, and the court does not justify its action by any declarations of Couch, John E. Lloyd, or any of the appellants. According to the complaint, the false representations were made by Couch, John E. Lloyd, and each of the defendants before, and caused the respondents to join in, the execution of the instruments. The court reverses this order of conduct, and deduces from the act of John E. Lloyd in signing the papers, and silence of John E. Lloyd and Couch, the fraudulent statements. We may observe that the jury found for the appellants upon these issues, and we repeat two of the special findings: “Did the defendant, John E. Lloyd, in any manner whatever induce the plaintiffs to accept at the rate of one hundred thousand dollars for their interest in the property described in the complaint? Answer. No. Did the defendant, John E. Lloyd, at any time or at all make any false representations to the plaintiffs whereby they were induced to sign the contract with Thomas Couch for the sale of the property described in the complaint? A. No.” The court virtually approved this part of the verdict, and upon another ground has inferred its facts.
When, therefore, we divest the findings by the court of all the matters which are outside of the issues, the relations of the
It is ordered and adjudged that the judgment be reversed, and that the cause be remanded, with directions to enter judgment for the defendants.
Reversed.