62 Colo. 256 | Colo. | 1916
delivered the opinion of the Court.
Hollingsworth instituted an action against Tufts for an accounting and a dissolution of the partnership he claimed existed between them. In his complaint he alleged that in 1898 the defendant represented to him that there were large undeveloped mineral deposits of gold, silver and copper in the state of Sonora, in the Republic of Mexico; that he desired to go there and locate mines and then arrange for their development and sale, but was without funds and if plaintiff would advance him money to cover the expenses of traveling and supporting himself and wife during the time required, he would go to Mexico and “prospect for mineral properties and everything he discovered or located or acquired, in any way whatsoever, that plaintiff should be a one-half owner thereof, and a full partner with defendant in everything he discovered or acquired.” Hollingsworth then alleges that he accepted the proposition and advanced Tufts money to- pay his expenses to Mexico and continued to furnish him money during the years 1898 to 1902, inclusive, to carry on their joint operations, and that Tuft's while using the money so advanced, discovered, located and acquired title, to a great many valuable pieces of mining property, which he has disposed of but has not accounted to plaintiff for his share of the proceeds thus realized. The answer of Tufts was a general denial.
The court found that a partnership existed between the parties which had never been adjusted or settled, by virtue of a contract entered into between them about September or October, 1898, “by the terms of which the
Pursuant to this order the referee proceeded to take testimony, and filed his report, from which it appears he found that defendant was indebted to plaintiff in the sum of $315,500 and 12,970 shares of the stock of the
It appears from the testimony that the parties entered into an oral agreement about October, 1898. On behalf of plaintiff it is urged, that it constituted them partners as promoters, while on behalf of defendant it is contended, that it is what is known in mining parlance as a “grubstake contract.” We do not deem it necessary to determine what particular term should be applied to this contract as their rights must be ascertained from the facts established by the testimony bearing on the subject of their relations and respective rights created by their agreement of October, 1898.
According to the averments of the complaint, plaintiff was to advance defendant funds to enable the latter to prospect for mineral properties in the state of Sonora; that everything he discovered, located or acquired in that locality, plaintiff was to be the owner of one half, and that from 1898 to 1902, inclusive, he advanced Tufts
• It is thus apparent that the allegations of the complaint and the findings of the court are not in harmony in this, that according to the complaint the defendant was to prospect for, locate and acquire mining properties without any limit as to time, while from the findings of fact by the court the parties were to be joint owners in whatever defendant discovered or acquired on his trip in the fall of 1898. This finding of fact is fully sustained
In the face of this testimony it is incredible that Hollingsworth advanced Tufts the large sums he claims,, and the expressions in letters of Tufts after he went to-New York, and in fact when carefully considered, are-nothing more in effect than an intention to aid Hollingsworth, if he succeeded, not because he was under any obligations to do so, or that they were jointly interested in any deals which Tufts was trying to consummate, but. on account of their former relations, and that Hollingsworth had aided him in first going to Mexico.
There is also testimony ofk witnesses on behalf of Hollingsworth to the effect that Tufts told them Hollingsworth was jointly interested with him, but we are satisfied that whatever Tufts said on this subject was at the time when jointly interested with others, they were try
There is another phase of the case which clearly demonstrates that Hollingsworth is not entitled to an accounting for profits, if any, arising from deals made by Tufts, after he left Kansas City for New York in 1900. Hollingsworth testified that Tufts told him if he secured the money on the note we have mentioned, which would enable Tufts to go to New York, the latter said “You need not worry, you will he taken*care of, you will be equal in anything I do if you will get me this money/’ This is not the agreement relied upon by plaintiff as alleged in his complaint hut a subsequent one. However, it is not necessary to base a decision on this proposition, because it appears from the findings of the court and the referee, that notwithstanding the testimqny of plaintiff and his witnesses, relating to admissions on the part of Tufts, (which he denies), that Hollingsworth was interested with him, the latter is not entitled to an accounting.
The court found .the terms of the contract between the parties to be, that plaintiff agreed to furnish funds to enable defendant to make a trip to Mexico for the purpose of discovering and locating mines, and determined that whatever mines or mineral properties the defendant discovered or acquired by discovery or knowledge gained on the trip, they should share equally. The .referee was directed to ascertain what properties the defendant discovered or acquired on that- trip, and determined the plaintiff was entitled to an accounting because defendant “got acquainted with and acquired knowledge of” the properties held by the Grand Union Mining Company, during his trip in 1898 and ’99, so that even if the agreement between the parties of October, 1898, was not limited to the Higueras Mine, the evidence establishes be
After the report of the referee was filed, plaintiff filed a motion to confirm that report. The defendant also filed exceptions and objections to the report, in connection with a motion for a new trial. These several matters were later considered by the court, with the result that the motion to confirm was denied, and it was further ruled that the evidence was insufficient to sustain the report ; that it be set aside; that defendant was entitled to judgment for his costs. Thereupon additional time to a day certain was granted plaintiff'to take such further steps as he might be advised. After expiration of this time the record discloses that no further action was taken by plaintiff, and that defendant was permitted to withdraw from his objections and exceptions, his motion for a new trial, and thereupon judgment was rendered dismissing the action and taxing the costs to plaintiff. Counsel for plaintiff now contend that when defendant withdrew his request for a new trial, the court was without authority to consider the objections and exceptions to the report, and that judgment should have been rendered thereon in his favor. Our Civil Code (Revision of 1908), sections 231, 232 and 233, provide in-substance, that the finding of the referee shall stand as the findings of the court, and upon being filed with the clerk, judgment shall be entered thereon unless objected to by either party, “by filing a motion for a new trial as hereinafter provided”; that when the report is filed, the clerk shall notify the parties, and judgment shall not be entered thereon until five days after such notice, nor until the court has passed upon the objections specified in the motion for a new trial; that the court may grant a new trial, or may modify the findings of the referee, and enter judg
It is also urged that the court erred in-taxing the costs to plaintiff, because, prior to reference, it had determined that a partnership existed which had not been settled, and this finding not having been set aside the court should have ordered a dissolution of the partnership and taxed the costs to defendant. When it appeared to the court from the testimony taken before the referee, that the partnership originally existing between the parties had been settled, in that plaintiff had received from defendant all to which he was entitled growing out of their joint ventures, there was nothing upon which to base an accounting, and in such circumstances their partnership was dissolved by operation of law. The effect of the judgment as finally entered by the court was to set aside its interlocutory finding that a partnership between the parties existed which had never been adjusted.
The former opinion is withdrawn and this substituted in lieu thereof, but as previously announced, the judgment of the District Court is affirmed.
Judgment affirmed.
•Decision en banc.