112 P. 206 | Idaho | 1910
This action was brought to restrain the sheriff of Shoshone county and his successors in office from executing or delivering to the defendant Goodsell, or his assigns, a sheriff’s deed conveying the Golden Curry, the Savage, the Savage No. 2, the Grouse and the Minnie Moore lode mining claims situated in the Yreka mining district, Shoshone county; and to vacate and set aside a deed dated November 20, 1905, made by John Keating to J. Frank Watson, conveying to said Watson the aforesaid mining claims; also to set aside a deed dated August 15, 1906, executed by the said Watson and wife to the Keating Mining Co., conveying said described mining claims to said company; and to set aside and
The pleadings put in issue certain transactions between defendants J. Frank Watson, P. J. and R. J. Jennings, and it is alleged in the complaint that a conspiracy was entered into by said three defendants with the intent to cheat and defraud the plaintiff out of said mining claims without paying the agreed purchase price therefor; and it is also alleged that the defendant Goodsell procured a mortgage for $16,000 on said property for the purpose of cheating and defrauding the plaintiff out of said mining claims and the purchase price therefor. By amendment to the complaint, it is alleged that said Keating Mining Co. is a foreign corporation, and at the time J. Frank Watson and wife conveyed said mining claims to said corporation it had not complied with the constitution and laws of this state in regard to filing its articles of incorporation and designating an agent upon whom service of process might be made, and that for that reason it took no title to said property through said conveyance.
Upon the issues made by the pleadings, the cause was tried by the court and finding of facts was made and judgment entered in favor of the respondents. The appeal is from the judgment.
STATEMENT.
It appears from the record that sometime in 1905, appellant gave an option to purchase certain mining claims owned by him near Wardner, Idaho, to a man named Devin. About
“Memorandum of agreement made between John Keating of Wardner, Shoshone County, Idaho, hereinafter called the first party, and J. Frank Watson, Trustee, of Portland, Oregon, hereinafter called the second party,
“Witnesseth; The first party agrees to sell to the second party the following lode mining claims situated in Yreka Mining District in Shoshone County, Idaho, as follows, to wit:
“The Golden Curry and the Savage, as described by United States patent; also the Eastern Extension of said Savage, known as ‘Savage No. 2’; the Eastern extension of Golden Curry, known as ‘The Grouse’; and the Western Extension of tire Savage, known as ‘Minnie Moore,’ for the sum of Twenty-five Thousand Dollars ($25,000.00) payments to be made as follows:
“On or before December 8, 1905.$ 2,500.00
“On or before June 8, 1906. 2,500.00
“On or before December 8, 1906. 20,000.00
“Said first party agrees to furnish an abstract of title showing a good, clear and unencumbered title to each of said claims; the title to be satisfactory to, and subject to the ap*665 proval of said second party; and also, upon tbe payment of the first twenty-five hundred dollars, to deposit, in escrow, at the Merchants National Bank of Portland, Oregon, a deed to said five claims, free and clear of all liens and incumbrance and showing a clear title thereto, executed to • said second party.
“It is further agreed between the parties hereto that if any of the payments above mentioned are not made at the time when due, then the payments which shall have been made shall be forfeited, and that this agreement shall thereupon become void and of no effect.
“The second party agrees to work at least sixty (60) shifts per month, beginning on or before December 9, 1905, and to deposit the actual net proceeds of ore mined, after paying all the expenses incident to the production thereof, to the credit of the first party to apply on the purchase price of said mining claims; and to render said first party monthly statements of any and all ore shipped; said second party to have the right to work the property in mine fashion as to him seems best.
“The first party is to have access to the property at any time during the life of this agreement for the purpose of inspection of the work.
“In Witness WheReoe, the parties hereto have hereunto set their hands and seals in duplicate, this 9th day of November, 1905.
“ (Seal) JOHN KEATING.
“(Seal) J. FRANK WATSON.”
Thereupon Watson made the first payment of $2,500 to Keating and a deed for the mining claims in favor of Watson was deposited in the Merchants’ National Bank of Portland in escrow. Watson acted as trustee. Work was commenced on the mining claims and Watson advanced the money to carry on such work until about the month of March, 1906. Prior to that date Watson had advised Jennings that he had already put up more money than he had anticipated would be necessary, and that he would not continue to put up money, as he could not see the outcome, as no ore had yet been discovered.
“This AGREEMENT made and entered into this twenty-first day of March, 1906, by and between John Keating of Wallace, Idaho, and P. J. Jennings of Portland, Multnomah county, Oregon,
“Witnesseth, That whereas under the conditions of a certain escrow agreement now on deposit with the Merchants National Bank, Portland, Oregon, between said John Keating and J. Frank Watson, it is provided that the following amounts shall be paid by said J. Frank Watson to said John Keating, viz.:
“Two thousand, five hundred dollars ($2,500.00) on or before June 8th, 1906, and twenty thousand dollars ($20,000) on or before December 8th, 1906, and
“Whereas, said first party has sold to said second party hereto all his right, title and interest in and to said amounts to become due on said escrow agreement for fifteen thousand dollars ($15,000), of stock in the Standard Development Company and hereby agrees that on or before December 1st, 1906, he will pay to said first party the balance or seven thousand five hundred ($7,500) dollars in cash or one hundred thousand shares (100,000) of the capital stock of a Corporation to be formed covering the said mining claims, which capital stock*667 shall be one million (1,000,000) shares of $1.00 par value each.
“In Witness WheReof, the parties hereto have signed these presents this day and year first above written.
“JOHN KEATING,
“P. J. JENNINGS.”
It is alleged in the complaint that at the time said last-mentioned agreement was made, R. J. and P. J. Jennings and Watson, respondents, made a verbal agreement with Keating to pay him $2,500 in addition to the consideration mentioned in said agreement. On March 21, 1906, the date when said last-mentioned agreement was executed, the appellant Keat-ing directed by letter the Merchants’ National Bank of Portland to deliver the deed theretofore placed in escrow to Watson without further payment. Thereupon P. J. Jennings delivered to the appellant certificates for 60,000 shares of the capital stock of the Standard Development Co. This stock was borrowed by P. J. Jennings from his brother, R. J. Jennings. P. J. Jennings induced Watson to keep the payroll at the mine going with the expectation of interesting eastern people in the property. This Watson did until he had advanced in the neighborhood of fifteen or sixteen thousand dollars. Watson thereupon, with two mining engineers, visited and inspected said mining claims, and after said inspection declined to advance any further sums for their development and so notified Jennings.
In the month of May, 1906, Watson, together with others, caused to be incorporated under the laws of the state of Oregon the Watson Mining Co., with a capital stock of one million dollars, divided into 1,000,000 shares of the par value of one dollar each; with the intention of turning over the Keating mining claims to such corporation. But the property was not turned over to the corporation, and nothing but the mere organization of the company was effected at that time. Epon Watson’s notifying P. J. Jennings that he would not advance any further sums of money in the promotion of said enterprise, said Jennings interested his brother, R. J. Jennings, in the property, and the latter thereupon, on August
THE RINDING OF FACTS.
Upon these facts and all of the evidence, the trial court found that Keating accepted and received 60,000 shares of the capital stock of the Standard Development Co. at the agreed price of twenty-five cents per share, or $15,000; that thereafter he accepted and received 100,000 shares of the capital stock of the Keating Mining Co.; that said 100,000 shares of stock were accepted by him after consulting with his attorney and deliberation on the matter, and with the full knowledge of the liens against said mining claims, and that Keating has at all times held and retained said certificates of stock since said date until during the trial of this cause. The court also found that there was no conspiracy or fraud in regard to said transaction, and that because of Keating’s accepting and retaining the entire purchase price for said mining claims and his long acquiescence in said matter subsequent to the execution and recording of the mortgage to Good-sell, he is not entitled to the relief prayed for in his complaint because of his laches and neglect. Upon all of the evidence the court found that no other agreement or contract was made or entered into between the parties on the 21st day of March, 1906, except the written contract above set forth made on that day, and that “no consideration was agreed to be paid except that mentioned in said agreement in writing. ’ ’ The court there finds against the allegations of the complaint to the effect that the defendants had agreed orally at the time said written contract was made that they would pay Keating $2,500 in June, 1906. The court also found that the terms and conditions of said contract had been complied with, and
“The court further finds that the allegations of the plaintiff’s complaint, charging fraud and conspiracy against the defendants, is not sustained by the evidence, and finds that the defendants are not guilty of fraud or of any conspiracy to defraud the plaintiff. The court further finds that the defendant David Goodsell was guilty of no fraud in the premises, and that the said defendant David Goodsell was not a party to any conspiracy to defraud the plaintiff out of his property or to defraud the plaintiff at all.”
The court found that the defendant Goodsell advanced the money and took said mortgage in good faith and for a valuable consideration, and without notice of any claim or equity of the plaintiff or any other person to the property of said Keating Mining Co., and that the same was in all respects a bona fide transaction. The court clearly finds that the entire transaction in regard to the negotiations for the purchase of said mining claims, the contract entered into, the deeds conveying said mining claims, the execution of said mortgage to Goodsell, were all done and performed in good faith, and the evidence is sufficient to support these findings. The finding of facts is sufficient to defeat the recovery by the plaintiff.
FOREIGN CORPORATION.
The contention of counsel for appellant to the effect that the Keating Mining Co., being a foreign corporation, could not take title to said mining claims as shown by the facts established on the trial, for the reason that it had not, at the time Watson conveyed said mining claims to said corporation, complied with the constitution (see. 10, art. 11) and laws of the state (sec. 2792, Rev. Codes) in regard to filing its articles of incorporation and designating an agent upon whom service of process might be made, is not well taken, for the following reasons: First, it is found that the contract for the sale of said mining claims was a legal, valid contract, procured without conspiracy or fraud on the part of the defendants, and that Keating had accepted and received the entire purchase
METHOD OE IDENTIFYING EXHIBITS.
During the cross-examination of the appellant, counsel exhibited to him certain letters for identification, and the witness testified that he did not know whether the letters presented contained his signature or not, and stated to the counsel that he might tell whether they contained his signature if he were allowed to read them. Counsel for appellant thereupon stated to the court that the witness had a right to examine the letters which he was asked to identify, and requested that the witness be permitted to read the letters. The court denied the request, and that action of the court is as
Other errors are assigned, and after a careful examination of them we are satisfied that there is not sufficient error appearing in the record to justify a reversal of the judgment. The judgment is therefore affirmed, with costs in favor of the respondent.