167 P. 358 | Utah | 1917
The plaintiff, in substance, alleged in his complaint that he and the defendant, at a time stated, entered into an agreement to mine ores under a certain lease which had been entered into with the Gemini Mining Company in the name of the defendant ; that the plaintiff agreed to pay the defendant two-thirds of the expenses incurred in mining said ores under said lease, and that the defendant agreed to pay one-third thereof, and that the net proceeds derived from said ores were to be divided between them in that proportion; that the mining company under said lease was to ship, and that it did ship and market, all the ores as mined and retained the title thereto until it had received its royalties under the lease, and after shipping the ores mined as aforesaid said mining company deducted its royalties and paid the remainder to the defendant; that the plaintiff and defendant had continued to mine ores on said terms for some time, and that the proceeds of the shipments had always been divided between plaintiff and defendant in the proportion aforesaid until the last shipment was made under the lease aforesaid; that the last shipment was made in July, 1914, proceeds of which, after the mining company had deducted its royalties and expenses, netted the sum of $1,010.31, all of which was by said company paid to and received by the defendant; that plaintiff is entitled to two-thirds of said amount amounting to $673.54 which he has demanded from the defendant and which defendant refuses to pay plaintiff. Judgment was prayed for that amount, with legal interest from the date it was received by the defendant.
The defendant filed an answer to the complaint in which he, in effect, denied all the allegations of the complaint. There
“That during the time from the 1st day of January, 1914, to the 10th day of July, 1914, the parties to this cause were engaged in the mining of ores belonging to the Gemini Mining Company under a lease agreement entered into between the said mining company and the defendant herein, Abner Gray; that the said mining was carried on under the name of Abner Gray & Co., the said Gemini Mining Company shipping the lots of ore as mined by Abner Gray & Co. and paying the net proceeds provided for by the said lease agreement by check payable to the said Abner Gray & Co. during all of the said time; that the said Abner Gray & Co. had no fund with which to conduct the said mining operations and was engaged solely in mining ores belonging to the said Gemini Mining Company, the plaintiff, David Mills paying two-thirds of the money necessary to carry on said business and the defendant one-third thereof;*230 that the net proceeds arising from the sale of ores so mined belonged to the parties hereto individually, and that two-thirds thereof belonged to the plaintiff, David Mills, and one-third to Abner Gray, the said Abner Gray acting during all of the said times herein mentioned as the agent of the said mining company for the purpose of receiving the said money and also acting as the agent of the said David Mills for the sole purpose of receiving it for him and paying it over to him; that on the 10th day of July, 1914, the said Abner Gray was acting as the agent of the plaintiff herein, David Mills, and as such agent received the sum of $673.53, which he upon demand therefor refused and still refuses to pay over to the said David Mills; that while acting as such agent he was not acting in his capacity as partner, but solely as the agent of the plaintiff, David Mills, to receive and pay over money belonging to the said Mills individually. ’ ’
The court also found, as a conclusion of law, that the plaintiff was entitled to judgment as prayed for, and entered judgment accordingly.
The defendant has appealed and has assigned numerous errors which his counsel in their brief reduce to five points or propositions. We shall consider those deemed material.
The first point argued is that this is an action at law between partners arising out of partnership transactions and that such an action cannot be sustained. The contention is that the action should have been in equity for an accounting between the partners, and that until an accounting is had and the liabilities of the partnership are ascertained and a balance is struck an action at law by one partner against the other will not lie. The precise question now raised was presented for consideration in the case of Morgan v. Child, Cole & Co., 41 Utah, 562, 128 Pac. 521. In that case Mr. Justice Straup, after stating the issues, stated the proposition decided in the following words:
"Upon these issues the ease was partially tried to the court and a jury. At the conclusion 'of plaintiff’s evidence, the court, on the defendant ’s motion, granted a nonsuit on the ground that the contract, and the evidence adduced by the plaintiff, show that he and the defendant were copartners in the transaction, and that an accounting between them was a prerequisite to the maintenance of the action, and 'that the plaintiff had no right to sue the defendant at law,’ and had 'mistaken his remedy, if any he has.’ A judgment of dismissal was thereupon entered, from*231 which, the plaintiff has prosecuted this appeal. It is seen that the motion was granted and the action dismissed, apt on the ground of insufficiency of evidence, but on the ground of a mistaken remedy. We think the trial court erred. In this, as in many other states in which the formal distinctions between actions at law and suits in equity are abolished, the court may administer relief according to the nature of the cause set out, whether it is such as would be granted in equity or such as would be given at law. 3 Cyc. 737. Our Constitution (section 19, art. 8) expressly provides that 'there shall be but one form of civil action, and law and equity may be administered in the same action.’ Volker-Scowcroft Lumber Co. v. Vance, 36 Utah, 348, 103 Pac. 970, 24 L. R. A. (N. S.) 321, Ann. Cas. 1912A, 124.
It is, however, also contended that the plaintiff cannot recover judgment in this ease for the reasons pleaded in the answer, namely, that he had violated an alleged rule of the company that an employee cannot be interested in any lease granted by the company for mining ores. There is no evidence in the record that the company ever had promulgated such a rule. The secretary of the mining company testified that he knew of no such rule, but said that it was “understood” that the employees should not be interested in leases, etc. For the purposes of the decision we shall, however, assume that there was such a rule promulgated by the company, and although the plaintiff testified, and his evidence is not contradicted, that he did not know pf spch a rule, we shall also assume that he did know.
‘ ‘ As a general rule, a broker cannot act as agent for and receive commissions from both parties to the same transaction, unless they are fully informed that he is so acting for both. It is clear, both upon principle and authority, that in ease of such double employment he can recover from neither, where his employment by the other has been concealed from and not assented to by the defendant. It is contrary to public policy to allow the broker a right of action against both parties for his commissions, and it is well settled that he does not have such right, although he may have acted in good faith; and evidence cannot be introduced to show a custom or usage among brokers to charge a commission to both parties in such eases. ’ ’
Lastly, it is insisted that the judgment is not supported by the findings. As before suggested, a mere cursory reading of the findings will disclose that there is sufficient in them to sustain the judgment, and that this objection should not prevail.
For the reasons stated, the judgment should be, and it accordingly is, affirmed, with costs to respondent.