4 Nev. 504 | Nev. | 1868
The examination of this case has conducted us to these conclusions : 1st. That the evidence is not sufficient to establish a co-partnership between the plaintiff and defendant of the general character alleged in the bill; but, 2d, whether a partnership of any kind were proven or not, the plaintiff made out a case entitling him to an accounting with respect to the operations of the Marys-ville Mill, and therefore that his bill should not have been dismissed.
As it is desirable to dispose of this case upon its merits, we will proceed to give the reasons which have conducted us to these conclusions. Whether a general partnership between the parties existed or not is a proposition not by any means relieved from doubt, for the plaintiff testifies positively, as alleged in the bill, that a partnership was entered into which was to extend to the business of milling and crushing metalliferous rock, and generally to all matters and things, which the said defendant might see proper to engage in; but the testimony of the defendant is direct, positive and unqualified that no partnership agreement of any kind was ever entered into between himself and the plaintiff. Such conflict in the testimony of two persons of unquestioned veracity must necessarily involve the first conclusion arrived at in considerable doubt. The burden of proof, however, is on the plaintiff, and in a case of this kind where it is sought to obtain the legal title to, and possession of, a large amount of property, both real and personal, all the outward evidence of right and title to which is in the defendant, the proof should be very satisfactory indeed to justify a decree such as that sought by this bill. He who claiming an interest in property yet allows another to take the title in his own name and to treat it as his own for years, cannot complain if when he seeks to establish his right to such property he is required ta make out a strong and satisfactory case. The Courts have ever been averse to disturbing the title of the ostensible owner of real property, except upon clear and weighty proof. The inclination is always to favor the legal title and maintain it in him who holds it. But the testimony on behalf of the plaintiff in support of the partnership falls far short of being satisfactory or convincing. Indeed, upon a candid weighing
It seems to us the plaintiff’s own testimony fails to make out his
Mitchell’s testimony, as has already been stated, is positive and explicit that a conti-act of partnership, as above described, was entered into, and the defendant as positively denies it — and so there is a direct conflict between the parties as to the existence of any contract of partnership whatever. So far as the plaintiff’s interest in the Marysville Mill is concerned, there is no conflict in the evidence — O’Neale himself testifying that he purchased a quarter interest in the mill, and afterwards sold one-half of such interest to Mitchell for a consideration, a part of which was paid before the mill was completed. And this acknowledged interest in the mill will serve to explain many of the expressions employed by the defendant in the letters to which reference will hereafter be made. The very nature of the contract, as stated by Mitchell himself, would doubtless make the evidence thus far preponderate in favor of the defendant; for it is very improbable that any person would enter into a contract so burdensome to himself, and yet yielding him no advantage. There is, however, some other evidence, which it is claimed tends to establish the copartnership, and thus to corroborate the plaintiff’s testimony. But in our opinion counsel attach more weight to that evidence than it is entitled to. McGowan’s testimony does not go beyond showing a joint interest or partnership in the Marysville Mill. So, too, with Barbour’s. He states explicitly that in the conversation between himself and O’Neale the admission of partnership was confined to the mill. And in the papers and pleadings in the case of Reilly v. O'Neale and others, not a syllable appears indicating any community of interest beyond that. Hall’s testimony is confined exclusively to the transaction of the purchase of the Crown Point stock, and there is nothing tending to show any partnership connection between the parties in any matter beyond that particular transaction.
In the letters written by the defendant to Mitchell there are some
That O’Neale would not write to the plaintiff so minutely with respect to business matters in which the latter had no personal interest, is entirely without weight, when it is remembered that these parties were, at the time this letter was written, connected by the most intimate and friendly relations. The employment of the pronoun “ we ” and the pronominal adjective “ our ” is referred to as a recognition by the defendant that Mitchell was interested with him in the stock, counsel arguing that these words, being in the plural form, could not possibly refer to any but the writer of the letter and the plaintiff to whom it was written. If such were admitted to be the case, still it would not,.even unexplained, be a very strong circumstance in favor of a general partnership between the parties, for it does not follow that such relation existed between them simply because they were jointly interested in one transaction
It is argued that as no person Avas mentioned in the letter by the defendant as being interested Avith him, and that as the letter was addressed to the plaintiff, it is a natural inference that he Avas the person interested. If the plaintiff did not in fact know Avho Avas interested Avith O’Neale, it is possible that such an inference might be deduced from the language. Suppose, hoAvever, Mitchell, by a previous letter or in some other way, had been informed that Hall' had made the purchase of the stock with the defendant, the
A paper is then produced purporting to be a statement of
In the month of January, a.d. 1866, “ Mr. Mitchell came to me and wanted to borrow money. He had done so repeatedly before, and I had stated to him my condition and inability to let him have it. I thought from his manner he doubted the correctness of my statement. This was on Friday or Saturday. I told him to come to the Marysville Mill on the next Sunday and that I would give him an exhibit of my affairs, and convince him of the correctness of what I had told him, and I gave him the statement for that purpose.”
As a statement of the condition of a partnership it is admitted this paper is deficient and imperfect in many particulars. The name of the plaintiff nowhere appears upon it, nor is there anything in it indicating that he was in any wise interested in the property described. It is, however, argued that such a statement could only have been intended as an exhibit of partnership affairs; that it is not probable the defendant would have made out such an exhibit simply for the purpose of showing that he was not able' to loan the plaintiff money. But why not probable ? These parties were very intimate and had been so for years. That the defendant should desire to satisfy his friend that he was really unable, rather than unwilling, to accommodate him, surely bears nothing improbable about it. That is of daily occurrence, and is prompted by the most natural feeling of our nature. Why, it is asked, should an exhibit of the assets or property he made, if the only purpose were as stated by the defendant ? Surely that was necessary even for that purpose. An exhibit of the defendant’s indebtedness only, without
And this is substantially all of the plaintiff’s testimony to establish the contract of copartnership claimed to have been entered into between himself and the defendant. The plaintiff, it must be admitted, testifies with certainty and clearness, hut is corroborated only by the expressions used in the letters, and the exhibit above referred to. On the other hand the defendant as distinctly and positively denies that any contract of partnership was ever entered into between himself and the plaintiff, and his testimoney is- corroborated by circumstances, not perhaps of any great weight, yet not entirely unworthy of consideration. Although the defendant was constantly engaged in speculations and business transactions of various kinds, and this too with the knowledge of Mitchell, yet no inquiry seems to have been made as to the condition of matters during all that time. So, too, when the plaintiff desired to obtain money from the defendant, without any mention of other property, or inquiry as to the condition of affairs, he mortgaged his interest in the Marysville Mill to obtain it of him. Although it is conceded there was no motive for concealing the partnership, yet during the entire period of about six years the plaintiff has failed to show that the defendant either directly admitted, or did any act beyond what we have referred to, recognizing any such partnership. And while Mitchell made frequent inquiries with respect to the Marysville Mill, he seems never to have given the other business or transactions in which he
But notwithstanding the testimony does not establish the contract of partnership which forms the foundation of the plaintiff’s cause of action, yet the evidence very satisfactorily, to our mind, makes out a case entitling him to an accounting, not by reason of any partnership, for that could only be created as between the parties themselves by an agreement or understanding to that effect, (and that we conclude is not sufficiently shown here) but by reason of their relations as tenants in common, and the necessity of an accounting before relief can be granted.
It appears that for a period of six or seven years the parties have been interested together in the Marysville Mill and its earnings, O’Neale having the entire management of the concern, receiving all the profits, and occasionally paying money to the plaintiff. But no settlement seems ever to have taken place between them. Under such circumstances an accounting -will ¡always be decreed, although no partnership be proven, for the «establishment of that relation is not always essential to the right to .have an accounting. (Post v. Kimberly, 9 J. R. 470.)
Willard in his work on Equity, 92, observes: “On the whole, it may be laid down as the general rule, deducible from what has been said, that equity entertains a general jurisdiction in matters
As a decree is sought only against the defendant, it is not essential to the plaintiff’s case that any of the other tenants in common in the mill, or the persons interested with himself and the plaintiff in the stock enterprise, should be parties to this bill; if, however, the Court should find that full adjustment cannot be had without bringing them into Court, it may order them brought in.
We are further of the opinion that the plaintiff, upon an amendment of his bill, showing the facts respecting the second Crown Point stock transaction, will be entitled to an account of that also.
It is so ordered.