194 Ky. 117 | Ky. Ct. App. | 1922
Opinion of the Court by
Affirming.
In the year 1901 the appellant, John W. Hollowell, the appellee, F. T. Satterfield, and O. 0. Larkin obtained, for an agreed consideration, of one E. M. Tyree a written lease, for a term of ninety-nine years, to the mineral rights in a farm in Caldwell county containing valuable deposits of the mineral known as “fluorspar.” In 1911 Larkin left the state and abandoned his interest in the
After the filing of such pleadings as were necessary to complete the issues between the parties, and the taking of proof, the circuit court rendered the following judgment:
“The court, therefore, adjudges that the plaintiff, F. T. Satterfield, is entitled to equal ownership- -with the defendant, John W. Hollowell, of the lease from R. M. Tyree and wife to John W. Hollowell, of date January 30, 1917, and that said John W. Hollowell be and he is hereby ordered and directed to convey to the said F. T. Satterfield a one-half interest therein; and that the defendant,*119 J. E. Frazier, be and he is hereby ordered and directed to pay to said F. T. Satterfield one-half of all the royalties, profits and benefits derived from his operation of the mineral property mentioned and described in said lease from John W. Hollowell to said J. E. Frazier, of date February 16, 1917.
“The court further adjudges that said partnership between F. T. Satterfield and John W. Hollowell, never having been dissolved, the plaintiff is and was the owner equally with the defendant, John W. Hollowell, of all spar on the ground, taken from said property prior to January 15, 1917, and an equal interest in the proceeds of all spar produced or sold since that date.”
An appeal was prosecuted by Hollowell from the judgment, which resulted in its affirmance by this court, the opinion being reported in 185 Ky. 397. It appears from the record that at the time of the affirmance of the judgment all operations under the lease to Frazier had ceased and the deposits of fluorspar on' the land covered by the lease had been exhausted. Upon the return of the case to the court below, following the filing therein of the mandate of this court, the cause, on Satterfield’s motion and without objection by Hollowell, was referred to the master commissioner to take proof and report the amount received by Hollowell from sales of fluorspar from the leased premises, the amount of royalties or other revenues received by him through Frazier from the operation of the fluorspar mine on such premises, together with all expenses actually paid by him in conducting the mining business thereon. At the succeeding term of the court the master commissioner filed his report, which seemed to be wholly based on an ex parte statement made by Hollowell. 'Satterfield filed exceptions to the report, which the court sustained without objection from Hollowell. The court then referred the cause to a special commissioner under the same instructions previously given the master commissioner, but the special commissioner having failed to file a report at the succeeding term, the court, on its motion, set aside the order referring the case to him and ordered the parties to take proof by the succeeding term preparatory to a trial by the court of the matters of account between them. The course thus outlined by the court was pursued, resulting in a judgmlent by which it was determined that after allowing Hollowell all credits to which he was entitled for expenses incurred and paid by him in mining fluorspar .on the land covered
The latter complains of the judgment and has again appealed.
We have considered, but deem it unnecessary to discuss, the numerous motions made by the appellant in the case after its return to the court below, as they seem to possess little merit and were apparently made for the purpose of delaying a trial of the case. We have also considered the adjustment made by the judgment of the rights of the parties and find no material error in same. The court had little difficulty in determining from the evidence the various, amounts received by appellant from sales of fluorspar mined- under the lease, or in arriving at the amounts received by him in royalties from Frazier, to one-half of all of which, less the necessary and reasonable expense incurred by appellant in such operations as were personally conducted by him under the lease, -appellee was entitled. The chief difficulty encountered by the court was in estimating these expenses, but we are not prepared to say that this was not properly done. Indeed, after a-careful consideration of the evidence as a whole, we are unable to say that it fails in any essential particular to fairly support the chancellor’s findings of fact as embodied in the judgment appealed from.
The ground chiefly urged by the appellant for a reversal of the judgment is that the recovery awarded the appellee should not have been adjudged because it involved the -settlement of a partnership undissolved, and that appellee to obtain such a settlement should have brought an independent action for that purpose. This question was not raised by appellant until a return of the case to the circuit court following the affirmance of the first judgment by this court, which judgment determined the right of appellee to recover what was allowed him. by the judgment now appealed from, but left it to the court below to fix the amount of the recovery which the last judgment allows. In Bower, etc. v. Collinsworth, 187 Ky. 1, we held that where a partner sued his copartners to recover balances alleged to be due in certain partnership transactions, and the defendants did not raise the question below that the action could not be maintained, without asking a settlement of the partnership
The only additional claim asserted by the appellee after the return of the case to the court below was as to his half of the value of certain ‘ ‘ dump ’ ’ from which appellant without appellee’s knowledge had extracted fluorspar, which claim was presented by an amended petition. Manifestly the recovery of this item was permissible, for it was as germane to the main relief sought in the action as were the other items sued for as incidental to appellee’s right to an. equal share^in the leased property, and its recovery under the firs! judgment contemplated by its affirmance. In Langham, etc. v. City of Louisville, 189 Ky. 232, in passing on this question we held:
“Errors relied on but not noticed in the .opinion are concluded by the opinion, and this rule applies to all cases where the opinion does not expressly state that a particular point is not passed upon. ’ ’
Judgment affirmed.