33 P. 40 | Idaho | 1893
This case was before this court on appeal from an order refusing an injunction, and is reported in Hawkins v. Spokane etc. Min. Co., ante, p. 241, 28 Pac. 433. The facts are sufficiently stated in that opinion, and it is unnecessary here to repeat them. It was there decided that the plaintiff, owning seven-eights interest in the mining property, was entitled to control the means used and the method adopted in working the mine, and the cause was remanded, with direction to the court below to grant the injunction to restrain the defendant from working said mine, except in the manner directed by plaintiff, to compel the defendant to pay all the proceeds of the work done by the defendant into court, and compel an accounting by the defendant. In accordance with the above direction, the case was again called before the district court of Shoshone county. -An injunction issued, enjoining said company from working said mine. The
Hpon said accounting the defendant put in the following account, which was allowed by the court, as appears by finding No. 4, to wit: Placer gold washed and extracted by defendant from the Niagara mine, together with a small quantity taken from the “Hatched Area” in the Eosa claim, which said Eosa claim was owned by the defendant, $10,504.86. The court also finds that the amount of gold found in said “Hatched Area,” and belonging exclusively to the defendant, was $583.60. • This amount the court deducts from the total sum, leaving the sum of $9,921.26 as being the amount taken from the Niagara claim, The court finds that the total amount necessarily expended by the defendant for working the said claim and the “Hatched Area” for labor, material, and supplies furnished, exclusive of any charge for water, is $5,855.93. That the defendant used and furnished divers tools, pipes, two giants, sundry lines of flume, etc., the exclusive property of defendant 111 days, the reasonable value of the use of which was $550. That the fair proportion of all the expenses chargeable to the said “Hatched Area” on the Eosa claim is the sum of $356.16, being one-eighteenth thereof, leaving the total amount necessarily expended in working the Niagara claim $6,050.77. That about $1,200 thereof was expended in preparing ground on the Niagara claim for future work, and is allowed; and the defendant is allowed for the use of the water for washing said Niagara claim the sum of $2,480.31, being a sum equal to one-fourth of the total sum of gold taken from the Niagara claim. The total amount allowed to the defendant is the sum of $8,535.08. The balance to be divided between the plaintiff and the defendant is the sum of $1,386.18, as the profit made in working said Niagara claim, of which the plaintiff is to receive seven-eighths, to wit, $1,212.91, and the defendant is entitled to receive $173.27. Judgment was entered in this cause in accordance with this finding, to all of which findings, and to the judgment, the plaintiff then and there excepted, and brings the case by appeal to this court.
The plaintiff offered in evidence a letter from Coulter, in which Coulter states, after giving the facts upon which his conclusions are based, that it is “a matter of serious doubt whether it [the Niagara claim] will pay all the way through or not”; and he adds: “It is my intention to try and get out of it before another season, and am now on the sell,” etc. The introduction of this letter was objected to by defendant, and the objection was sustained by the court, which ruling, we think, was error. Having concluded that there was no profit for him in working the claim for one-eighth interest of the gold that was in it, he proposes to utilize the entire gold product of the claim, by working it with water and expensive appliances, all belonging to defendant corporation, as is seen by the account presented and allowed by the court.
The respondent cites the following cases:
Duryea v. Burt, 28 Cal. 569: In this case the court announced the principles enacted in our statute and in the California statute as well. Both that and Dougherty v. Creary, 30 Cal. 290, 89 Am. Dec. 116, are leading eases, and were cited and closely followed in the opinion in this case in ante, p. 241,. 28 Pac. 433.
Decker v. Howell, 42 Cal. 636, announces no new principle, and none different from that given as the law in this case. In addition, the court stated that the mine owners might form a strict commercial partnership, if they so desired, and in that, case one partner might give a note which would be binding on the other partner.
Taylor v. Castle, 42 Cal. 367: In this case the defendant Castle purchased the interest, being a one-sixteenth, of P. H. Ford, one of the original partners of the New York Hill Mining Company, and afterward sold one-half of such sixteenth to the defendant Seligman. Neither Castle nor Seligman, however, attended the meetings of the partnership, and there was nothing to show that they ever approved or consented to the contract of the company with the plaintiff, who had built a mill for the company. The court say: "It is well established now that in such partnerships there is no delectus personae. The partnership is not dissolved by the death of a partner, nor as a consequence of a sale of an interest to a stranger. As, therefore, the sale of an interest to Seligman did not dissolve the partnership, I think by his purchase he presumptively became a partner, although he took no part in the management of the partnership affairs, and never held himself out to the world as a partner.” It will be seen by this decision that Seligman became a partner by reason of his ownership of shares, and was liable for the debts, although he never assisted in working the mine, or in the management of its affairs, nor held himself out as a partner. In this, it, the mining partnership, is seen to be precisely like a corporation. In short, a mining partnership, by virtue of our statute, in all its essential elements is precisely like a corporation. To make this fact perfectly apparent, let us paraphrase our statute. Let us suppose a corporation owning a woolen factory, and regularly organized. Compare the principles announced with our mining
Tn viewl of these principles, as established by our law, it will be seen that the defendant had no right to proceed to work the Niagara claim against the protest of the majority interest. We therefore proceed to examine the testimony in the case at bar. Mr. Coulter testifies: “We used all the water there was in the pipes, from the time we commenced, on June 8th, until September 21st, on the claim, using 41,718 inches of water. I charged twenty-five cents an inch for water, which I thought was very reasonable.” This^would make the aggregate cost of water alone $10,428.50. Add to this Coulter’s estimate of the cost of material and labor, to wit, twelve cents per yard for removing 48,883 cubic yards — $5,859.96—and we have the aggregate sum of $16,288.46 as the cost of producing $10,-504.86 of gold. It is conceded that Hawkins worked the ground at a profit in 1889. Again, Coulter testifies: “It cost him [Hawkins] thirty-nine cents per cubic yard for gravel moved, for labor and material alone.....Including twenty-five cents per inch for our water, it cost us per cubic yard equal to what it cost him for labor and material alone, without accounting for any charge for water, i. e., about thirty-nine cents.” This calculation would make the cost of the production of $10,504.86 of gold by defendant $19,064.37 — a net loss of $8,559.51. Again, Coulter testifies: “The gold is found either on bedrock or close to it. Ninety-eight per cent of it is within ten feet and possibly five feet, of bedrock.” And 'again the same witness, in accounting for Hawkins getting fifty-eight cents per cubic yard, while defendant got but twenty-four cents per cubic yard, says: “He [Hawkins] was working in the grass roots, and there is as much gold in the light ground as there is in the ground that is one hundred feet deep.” Hawkins testifies that the ground was not over forty-five or fifty feet at the highest point; less, rather than more. Taking into consideration the offer of plaintiff in his complaint, wherein he states that he is willing to pay seven-eighths of the actual cost of extracting the gold, perhaps it would be but fair to take his (plaintiff’s) own estimate of what the actual cost of production should be. We find that plaintiff puts the actual cost of pro
The district court finds, in finding of fact No. 4, “that the quantity of bedrock cleaned upon the ‘Hatched Area’ was about one-eighteenth of the total quantity of bedrock cleaned by the defendant; that the amount of gold contained in said ‘Hatched Area,’ and belonging exclusively to defendant, was $583.60.” The defendant unquestionably had the right to work the “Hatched Area,” as it is called, which was upon the Eosa claim, and which belonged to the defendant, in any manner it saw fit, and, if the product of such working had been kept separate from the product of the Niagara claim, the defendant would have been entitled to the whole of the gold taken therefrom; but it is miugleil by defendant with that taken from the Nia