76 W. Va. 214 | W. Va. | 1915
Griffin has appealed from a decree enforcing Kyle’s claim to right of participation in the profits arising from the sale of certain areas of coal, on the theory of a partnership relation between them, and Kyle cross-assigns error in a later decree in the cause, allowing Griffin a commission of $5.00 an acre for his services and expenses in and about the sale of other areas of coal in which both were equally interested.
Sheridan R. Griffin, Jasper S. Kyle and A. B. Van Osten were equal and joint owners of numerous tracts of coal, mak
Being men of limited means, these parties carried on their operations under considerable embarrassment. For the most part, the money with which they paid for the coal was borrowed in various forms and they had some difficulty in finding enough to take all their enterprise contemplated. This circumstance seems to have brought about the peculiar relations respecting other coal out of which the present controversy has arisen. There were coal areas known as the Dewhurst, Hardman and Danial Bates tracts, containing, respectively, 3066.25, 1122.15 and 347.9 acres, which, by reason of their location, could have been included, in the enterprise and handled advantageously with the 4823.66 acres Griffin, Kyle and Van Osten succeeded in consolidating and selling as aforesaid. The Dewhurst, Hardman and Bates coal, with some additional tracts, making in the aggregate about 5500 acres, were purchased by Griffin and one Michael A. Brast. On the same day on which Griffin, Kyle and Van Osten gave Wyer their first option, Griffin and Brast optioned to him 5500 acres of coal including the Dewhurst, Hardman and Bates tracts. Three days later, Griffin and Brast bought the Dewhurst coal and near that date, the Hardman and Bates coal, all of which together with additional tracts, they sold, in the year 1906, to William F. Baird, at a very considerable profit, and executed conveyances thereof. Claiming the purchase of the Dewhurst, Hardman and Bates coal had been contemplated by the alleged copartnership and that Griffin’s purchases thereof in connection with Brast were
G-riffin denies the existence of any partnership relation among the parties, saying they were mere tenants in common of the numerous tracts of coal, constituting the boundary of 4823.66 acres. If this contention cannot be sustained, he insists there was no general partnership for the purchase and re-sale of coal, but only a limited one embracing the land actually purchased and re-sold by them. These positions are based largely upon the terms of the following instrument:
“This, Memorandum of Agreement, by and between Sheridan R. Griffin, Jasper S. Kyle and A. B. Van Osten, all of Clarksburg, W. Va.
CERTIFIES, that, all of a certain lot of coal and coal privileges, bought in Doddridge County, W. Va. through the agency of J. F. Dye, Luther E. Kyle, and a few pieces from Chas. S. Hornor: the deed for the said several tracts, and for individual tracts, are being taken in the name of Sheridan R. Griffin trustee, for the use and benefit of said Sheridan R. Griffin, Jasper .S. Kyle and A. B. Van Osten; and it is agreed by each of them, that, they will bear equally the cost of purchasing said coal, and the contingent expenses, incurred in taking up said coal and taking deeds, etc. for same.
And that, they, each of them, and after them their heirs and assigns, are to hold an equal interest in the property so purchased, or any profits arising from any sale of said coal property.
The aggregate amount of said coal properties, so bought and so deeded, is about Three Thousand Acres, (3000).
Witness the following signatures, and seals, this 20th day of December, 1902.
SHERIDAN R. GRIFFIN (SEAL)
JASPER S. KYLE ■ (SEAL)
A. B. VAN OSTEN (SEAL)
Reading this paper in connection with extraneous evidence disclosing the circumstances under which it was executed, the previous and subsequent situation and conduct of the parties
Support of the view of a mere tenancy in common and limited partnership is sought in the method by which purchases of coal were made. None of the parties possessed or exercised the right individually to make binding purchases for the association. No tract of coal was taken in otherwise than upon the unanimous approval by the parties, of its location, character and price. The association maintained no office known as a firm office. Mr. Kyle had an office in which the most of their business was transacted, but it seems to
- The inception of this enterprise was the association of Griffin and Kyle in the procurement of certain coal interests held in the names of J. F. Dye, Luther E. Kyle and Chas. S. Hornor in Doddridge County. Immediately after they became so interested, Van Osten was induced to join them. The interests so obtained embraced the coal in numerous tracts of land, either lying contiguous to one another or so related as to be susceptible of easy consolidation into what is denominated a coal field. From the date of this beginning, June or July, 1902, until the latter part of the year 1905, the work of acquiring and perfecting the titles to these parcels of coal and some others was diligently and successfully carried on. As shown by the agreement herein quoted, they had acquired, on the 20th day of December, 1902, about 3,000 acres. At the date of the execution of the option to Wyer, they had gotten in about 4,000 acres. From that time until the closing of the
During this period, Griffin was interested in a number of other coal transactions, in which Kyle and Yan Osten do not claim to have been concerned, but most of these were in other locations and the lands unrelated in any way to the consolidation enterprise in Doddridge County. All three, however, wore interested in the purchase and sale to O. W. Lynch and others of 419.89 acres, lying east of the lands they sold to Baird. The options on these lands had been acquired by Kyle and one Elliott. These holdings Avere turned over to the alleged partnership and a profit of $500.00 thereon allowed to Elliott.. Griffin relies upon this circumstance as proof of "Kyle's separate transactions in coal Avithin the life of the co-partnership. Kyle got $50.00 from Elliott, out of this transaction, which he claims was a mere alloAvance for expenses in the procurement of the options, and denies his association with Elliott in the transaction as a separate or hostile one. Elliott is indefinite as to their exact relation and Kyle’s motive, but says he and Kyle procured and held the options together. Whatever their true relation was, all of Kyle’s interest, except the $50.00, went into the joint enterprise. Before the association of these parties, Griffin had consolidated a considerable area of coal which he sold to McDonald and Cray. Portions of this coal had been obtained from H. L. Smith, and, in that transaction, he claims to have purchased 139 acres, which was subsequently conveyed to him and offered to the alleged copartnership. He says Kyle and Yan Osten both declined to take this tract in. It was subsequently sold and conveyed to Pritchard. Kyle assisted in the sale thereof and received $369.67 out of the proceeds, which he says was on account of his share of the profits. Griffin says he employed Kyle' to make the sale and this payment Avas made to him by Avay of compensation for services only. This tract, though in Doddridge or Wetzel County and not far from the Dye, Luther Kyle and Iiornor lands, did not adjoin them. Griffin also obtained some other small tracts still farther away from the association nucleus, the title to which he still holds. Kyle insists that these tracts were partnership property and produces some memoranda in Avhich they
The area which Kyle seems to have considered as the nucleus of the coal field contemplated by the enterprise lay a short distance from a branch of the Short Line Railroad, and, between it and said branch railway, were the Dewhurst lands and two small tracts known as the Carrell and Carlin lands. The locations of the several tracts known as the Hardman group and the Bates tract are not very well defined, but they seem to have been contiguous to the Dewhurst tract or very near it. All of these lands seem to be in Wetzel County. • In a suit pending in the Circuit Court of the County, a sale of the Dewhurst coal had been decreed and S. Bruce Hall appointed a commissioner to make it. Early in the year 1903 or 1904, as to which the evidence is somewhat conflicting, Griffin, Kyle and Van Osten went to New Martinsville and made inquiries concerning the Dewhurst coal. If this visit was añade in 1904', Kyle had had some previous correspondence with Mr. Hall about the coal. On Jaaiuary 11, 1904, he wrote Hall a letter concerning it, and, on January 18, 1904, received a reply. Kyle says a bid of eight dollars an acre was añade 'on the coal at that time, but this is denied by Griffin aaid Vaai Osteal does aaot reanember it, if it occurred. Oai this oecasioai, they came in' contact with Mr. Brast, aaid, according to the testimony of Kyle, an arrangement was made with him to keep the alleged partners advised conceom-ing the status of the Dewhurst coal. Griffin says the primary object of the visit to New Martinsville was a loan from one of the banks at that place, but Kyle and Van Osten say they had in view the coal as well as the loan. Brast says they inquired about the coal and wanted an option on it, but were advised by ITall that it could not be optioned. All the parties to this controversy were undoubtedly impressed with the advantage of this property in connection with their holdings,
Griffin and Brast purchased the Dewhurst tract, November 30, 1905, and obtained a deed for it December 21, 1905. The Hardman group and the Bates- tract seem to have been purchased later. Brast purchased these lands in his name, but Griffin contributed to the purchase money and an undivided half interest therein was afterward conveyed by him to Brast. Griffin says he first resolved to purchase the Dewhurst tract sometime in the summer of 1905, and denies any intention on his part, at any previous time, to buy it. He insists that, on numerous occasions, Kyle and Yan Osten were requested to join him in the purchase thereof, and that they declined to do so. This is emphatically denied by Kyle. Yan Osten considered the Dewhurst coal desirable, but felt that his holdings were as large as he cared to make them, in the absence of any prospect of immediate sale. Virgil L. Highland testifies that Yan Osten, on one or more occasions expressed his unwillingness to enter upon the purchase of the Dewhurst coal, when advised by him to do so. Yan Osten admits that, at the time of the excution of the option to Wyer, he had given up the idea of buying more coal, but he says he has no recollection of any requst on the part of Griffin, after the visit to New Martinsville, to take any interest in the Dewhurst coal. He says Griffin was anxious to obtain more coal and had so expressed himself, and that he, Yan Osten,
According to the testimony of Kyle and Yan Osten, measurably corroborated by documentary evidence and admissions of Griffin, some of the tracts of coal obtained by Brast and conveyed to Baird by him and Griffin would have been acquired and put in under the 5000 acre option, but for Brast’s activity in the field, after the execution of that option. Griffin denies this, saying an imaginary line of separation between Brash’s operations and those of Kyle and Yan Osten was established, but the evidence of this is rather slight. Kyle and Yan Osten both testify vto their effort to obtain tracts Brast acquired. While they had no option on the Hardman group, Kyle says he had a tentative verbal agreement with Hardman under which they were to be taken over, upon the presentation of an opportunity for sale thereof.
That Kyle and Van Osten desired all the coal they could safely handle is beyond doubt and it is equally certain they wanted the Dewhurst, Hardman and Bates coal, if they could handle it. The embarrassments were lack of money to obtain
The established periods of adversity in which, discouragement overtook Kyle and Van Osten detract very much from the probative force of the declarations imputed to them. Though made, a.s claimed, they do not prove these two men would have objected to the purchase of the tracts in question at the time Griffin joined Brast in taking them over, if they
Griffin’s alleged invitations to Kyle and Van Osten to join him in the purchase of the coal in question are lacking in specifications of time, place and circumstances, They are general and indefinite. If given, they may have been timed with reference to the moods of his associates. There is no pretense that they were given in December, 1905, or January, 1906, when conditions favored their acceptance. Nor, indeed, are any specific times given. His protestation of lack of a partnership relation, imposing duty to give his associates an opportunity to participate with him in the purchase of these tracts does not harmonize with his tender of the detached Smith tract of 139 acres and some others which he says they declined to accept. Though not contiguous to the Dye, Kyle and Hornor nucleus, they were in the same locality, wherefore he seems to have felt it his duty to offer to put them into the joint undertaking. The Dewhurst land was more directly in the line of the joint effort and more desirable territory,
This analysis of the evidence brings the ease clearly within the well settled principles declared and applied in Krebs v. Blankenship, 73 W. Va. 539, 80 S. E. 948, Thorne v. Brown, 63 W. Va. 603 and McKinley v. Lynch, 58 W. Va. 44, provided the joint enterprise was not limited to coal actually purchased, and did not extend to or include coal contemplated but not purchased, nor establish a relation of confidence among the parties, imposing duty to make full disclosure of advantageous information and opportunities.
That the purchase and sale of real estate is proper subject matter for a copartnership is not an open question. It is well settled in this state as elsewhere. But it is said there could have been no partnership here, because the members of the association had no' power separately and individually to make binding contracts of purchase or sale for and on its behalf. In other words, the connection is that no coal became partnership coal, until after it was bought by the joint and unanimous action of the members, wherefore no duty could have been imposed upon any member, toward his associates respecting any coal not actually purchased; and Latta v. Kitbourn, 150 U. S. 524 is cited and relied upon as sustaining the proposition. The facts in that case were vitally different from those involved here. Latta was a member of a firm of brokers, not at all engaged in the purchase and sale of real estate 'on their own account. He engaged with Stearns in some purchases and- sales of real estate which the firm handled for them as agents and on which it took its commissions. Afterwards, the other members of the firm endeavored to compel him to account for the profits he had derived from these transactions. In the bill they alleged an agreement among the members of the firm, forbidding any of them from engaging in the business of buying and selling any real estate on their own account or with any other person or persons, without first having explained the proposed transaction to the firm and given it an opportunity to take part in it. This allegation was denied and not established by proof. Nevertheless the court treated
The coal in question was obviously in the line of the aims and purposes of the parties. As a whole, it was contiguous to their nucleus and lay between it and the railroad. In such enterprises, an outlet is generally essential. An advantageous sale cannot be made without it. Baird’s option affords some evidence of the advantageous connection of these properties, and "Wyer took his'two options so as to enable him to consolidate the tracts, with access to means of transportation. Whether Baird would have taken the 4823.66 acres without the coal lying between it and the railroad does not appear, but his 10,000 acre option taken so as to include it discloses his view of the situation as a coal dealer, as the action of Brast, Griffin and Wyer in covering all these tracts with two options in the hands of one man indicates theirs. Manifestly their conception of the relation of the tracts, respecting their standing in the market, coincided with that of Kyle and Yan Osten, and lends support to Kyle’s contention as to the scope of the partnership agreement.
Upon these views and conclusions, we think the finding of the trial court on this issue is right.
The allowance of a commission to Griffin is clearly wrong.' He proves no special agreement for compensation. Kyle and Van Osten both positively deny its existence. Aside from the testimony of Griffin and his wife, neither of whom specifies any rate or basis of compensation, the claim is founded upon inferences ■ and vague expressions of willingness to compensate. Van Osten says the only offer of compensation to Griffin he ever made was a remark that, on Griffin’s sale of the coal, he would give him a trip to Atlantic City. There is evidence tending to prove Kyle offered certain persons a one-fourth interest in the holdings, if they would endorse $30,000.00 of the firm’s paper, but that was no offer to Griffin. Offers of commission to third persons are established, but these do not inure to Griffin. Willingness to pay commissions to strangers and generally to any person who would make the sale and expressions thereof constitute no evidence of a special agreement to allow a commission to a member of the firm. He stands on a different footing from that of a stranger. Prima facie his services belong to the firm and are paid for by his membership. Griffin rendered very generous and efficient service. His ability seems to have been far greater than that of his associates, but no provision was made in the partnership agreement for a larger share of profits to him on that account. All agree they were to bear the expenses and losses
The decree of Feb’y 16, 1912 will be affirmed, that, of August 13, 1912, reversed and the cause remanded.
Affirmed in part. Reversed in pari. Remanded.