McKenzie v. Coslett, No. 1663

No. 1663 | Nev. | Oct 15, 1904

By the Court,

Belknap, C. J.:

This is an appeal from a judgment and decree in favor of defendant in a suit for a dissolution of partnership and an accounting of the proceeds of ores realized in operating a portion of the Mizpah lode, in Tonopah 'mining district, under a lease by defendant and others, from which plaintiff was excluded.

The answer denied partnership.

The court found, among other things, that about the 16th day of March, 1901, plaintiff was the superintendent of the Dexter mine, at Tuscarora, and defendant was a miner in the employ of the Dexter Company; that, intending to go to Tonopah to prospect that country, he verbally agreed with plaintiff to locate him in any mining claims he might discover, to send him samples of the ore of the principal mines, to inform himself concerning the opportunities for purchasing mining properties and advise plaintiff, and, iff the information justified a personal examination, plaintiff would go there and make such examination. Plaintiff agreed to pay defendant wages at the rate of $45 per month, and on or about the 16th of March paid him $45 in advance. It was further found: "That each should be equally interested in any mines located or found, as well as in any bond, lease, or option taken by defendant and plaintiff, and should be undivided one-half owners in any claims located or discovered, or the profits of any bond, option, or lease taken or worked. That each should pay his proportionate share of the expense of such venture until it became self-sustaining.”

The fourth, fifth, and seventh findings are, in part, as follows:

"That on or about April 12,1901, defendant agreed to form, and did form, a partnership with T.W. Wilkerson, E. A. Stauts, and J. H. Robbins for the purpose of taking a lease on one hundred feet of ground of the Mizpah ledge, described in the complaint. That said parties at once began active work together in said leased ground under a lease from the owners of'said Mizpah claim given to defendant, the said Wilkerson, Stauts, and Robbins. That the defendant acquired and took his interest, to wit, a one-fourth interest, in said lease, with his own means, in his own name, for his own use and benefit, and excluded plaintiff, whose name was not used oivknown in the said lease, or the negotiations that led up to the taking of the same. That defendant and the other parties named continued to work the leased ground until on or about May 12, 1901, when the interest held by J. H. Robbins was acquired by defendant, Wilkerson, and the said Stauts. That defendant, Wilkerson, and the said Stauts continued to work the leased ground for about one month and a half at heavy expense, being put to great strain for want of money to carry on the work, several of them stopping the work on lease to work elsewhere for wages wherewith to get money to support their families, as well as to carry on the work on the lease. That defendant entered into said partnership with the said Wilkerson, Stauts, and Robbins without the knowledge or consent of the plaintiff, and not in pursuance of any agreement, expressed or implied, with said plaintiff.

" (5) * * * That no ore was actually discovered in said ground until on or about some time between May 28th and June 1st of that year. * * *

" (7) That plaintiff became fairly and fully informed and advised of the fact that defendant was in said lease, and that defendant was being pressed for money,to carry on the work and operations in said lease, at least as early as about the middle of May, 1901. That shortly thereafter, and long prior to plaintiff’s going to Tonopah, about November 1st of that year, plaintiff was repeatedly informed of defendant’s being in said lease, and shortly after *and on or about June 1, 1901, the time the ore was found in said lease, plaintiff was repeatedly informed and advised that said lease was a paying and profitable one. That plaintiff made no assertion of claims of any right or interest in said lease, or the leased premises, or the proceeds thereof, nor made or asserted any claim of right or interest by reason of his agreement with defendant, until long after ore was struck in said ground, and until long after'the lease was ascertained, beyond any doubt, to be a profitable one. That the taking out of ore from said ground began about June 1, 1901. * * * That the first assertion of his alleged claim or interest was not made by plaintiff until November 1,1901, or thereabouts, and that nothing was done by plaintiff to enforce his alleged claim in interest until the 16th of January, 1902, when the above-entitled action was commenced.”

Plaintiff testified in part as follows: "In the latter part of the conversation I told Mr. Coslett that, if he came across some good property that he could get a lease or bond on, to let me know, and, after my personal examination of it, that I would go down there and examine the property, and, after taking my own personal expenses and the money, whatever it was, that I invested, that we needed, divide the rest share and share alike — that we would divide the profits that way— but I said I would not entertain a proposition until I made a personal examination myself.” Upon bis cross-examination the following occurred: "Q. You would not have taken hold of any property until you made a personal examination? A. No, sir; not until I made a personal examination. Q. You was to manage the deal and buy the property; Coslett was to do whatever you said? A. There was nothing said, exactly, about that. I was to use my own judgment about that. Q. Who was to put up the money for the bond? A I was. Q. You were to put up the money and take the bond on it if you considered it a good proposition, and, if you considered that it was not, you would drop it, using your own judgment about it? A. Yes, sir; I would take a bond if I thought it was all right, and if I didn’t I would drop it. I was to use my judgment. Q. Then, no matter what Coslett did, you were to approve of it first, and, if it was not a good proposition, according to yonr judgment, you would abandon it? A. Well- Q. You had the exclusive right to say as to whether the property was to be taken or not? A. Yes, sir; that was strictly understood.” In defendant’s narration of the agreement, he said: "Well, he [plaintiff] said he didn’t want to bother with any leases, anyway; that he was too far away to tend to any leases, and that he didn’t want to have anything to do with them; that all he wanted to be interested in was mining locations or claims, or jointly in bonds that I might see fit to take.”

The words in the above-quoted finding, "That each should, be equally interested in * * * any lease taken by defendant and plaintiff, * * *” must be taken in their literal sense; that is to say, plaintiff and defendant were not, in fact, interested in the léase. Defendant was. The above excerpts of the testimony of the plaintiff himself show that he was not to be interested in any lease until after examination and approval by himself. He was not informed by defendant concerning the mine or lease. Under plaintiff’s version, it was defendant’s duty to have informed him. But notice of the facts sufficient to put a prudent man upon' inquiry could have come from any other source. The district court found as a fact that plaintiff was fully and fairly informed by others. Under these circumstances, considering the uncertain value of the property, plaintiff should have promptly asserted his rights, and not have waited until defendant had developed the property and demonstrated its value.

It is unnecessary to consider other questions. The plaintiff’s testimony and the findings upon the subject of notice precluded a recovery.

The judgment and order are affirmed.