79 P. 196 | Idaho | 1904
Lead Opinion
This action was commenced by the plaintiff, J. A. Morrow, on what is commonly known as a “grub
“1. That about the first day of September, 1900, the plaintiff and the above-named defendants entered into an agreement whereby, and by the terms of which agreement, the above-named defendant Matthew undertook with the plaintiff and the above-named defendant Ellis that he, the said defendant Matthew, would go into the southern portion of Shoshone county, Idaho, and there prospect for mines and when found, locate mining claims, subject to location under the laws of the United States and the state of Idaho, for the joint use and benefit of this plaintiff and said defendants. That in each and every mining claim so discovered, located or acquired in any manner by said Matthew, by the terms of said agreement, the plaintiff and the said defendants were to be equally interested, whether said defendant Matthew should acquire the said mining claim, or any interest therein, by location, purchase, gift or for services rendered.
“2. That in consideration of the acts and things so to be done by the said Matthew as aforesaid, this plaintiff and the defendant Ellis entered into an agreement with the said Matthew, whereby and by the terms of which agreement this plaintiff and said defendant Ellis were to furnish the said Matthew such sup*427 plies, tools and implements and other things of necessity incident to such prospecting, locating and acquiring mining claims, as said Matthew might require in and about the keeping of the said agreement and contract on his part.
“3. That at the time of the making of the said agreement, the plaintiff and the said Ellis furnished the said Matthew with a complete outfit of provisions, supplies, tools and other things necessary to be used in prospecting as aforesaid, and delivered the same to the said Matthew, whereupon the said Matthew, pursuant to said agreement, went into the southern portion of Shoshone county for the purpose of prospecting as aforesaid.
“4. That while so using the materials and supplies furnished by the said plaintiff and defendant Ellis as aforesaid, the said 'defendant Matthew did, on or about the twenty-fifth day of May, 1901, acquire an undivided one-half interest in and to the Wild Rose mining claim, situated in the Pierce City mining district, Shoshone county, Idaho, which said Wild Rose mining claim was located in the name of W. S. Wilkinson, and said Matthew assisted in the making of said location, and said Wilkinson, pursuant to an agreement with the said Matthew, conveyed the said undivided one-half interest in and to the said Wild Rose claim to said Matthew, notice of location of said Wild Rose lode mining claim being recorded on the fifteenth day of July, 1901, in book W of Quartz Locations, at page 24 thereof, records of Shoshone county, Idaho. That the said Matthew received a deed to the said undivided one-half interest in the said Wild Rose mining claim from said Wilkinson, pursuant to an agreement made between the said Wilkinson and the said Matthew. That said Matthew should share equally in said location by reason of having prospected for and participated in the location of said claim, and said Wilkinson was fully advised at the time of the making of the deed that the said Matthew was working under a grubstake contract with this plaintiff and the defendant Ellis.
“5. That the plaintiff, independent of the said Ellis, furnished the said Matthew provisions and supplies for the purpose of prospecting as aforesaid, of the value of more than $75, and*428 said Matthew was living upon and using the supplies so furnished by plaintiff at the time of the location of the Wild Rose mining claim, and of his receiving an interest therein, and said Matthew received such interest in said Wild Rose mining claim for the benefit of himself, the said Ellis and this plaintiff in equal portions.
“6. That by reason of the said contract and the matters and things hereinbefore set forth, the plaintiff is the owner of, and since the date of location thereof has been the owner of, an undivided one-sixth interest of, in and to the said Wild Rose mining claim, the Albert Edward lode claim, the Little Annie lode claim, the Lillian lode claim, and the Chronicle lode claim, and the Wild Rose millsite, all situated in Shoshone county, state of Idaho.
“7. That it appears from the evidence that defendant Matthew had conveyed, before the commencement of this suit, all of the interests standing in his name, except an undivided one-third interest in the Chronicle lode claim. That the said Ellis has standing in his name and subject to the rights of the plaintiff an undivided one-fourth interest in the said Wild Rose lode claim, an undivided one-third interest in the Wild Rose millsite, and an undivided one-third interest in each of the other above-named mining claims.
“8. That the Wild Rose mining claim was first located in the name of defendant Matthew and one Wilkinson, and that the defendant Matthew at the time of the location of the Wild Rose lode claim, held a one-half interest therein under the terms of the prospecting contract hereinbefore found, and of said one-half interest said Matthew owned one-sixth, said Ellis owned one-sixth and said plaintiff owned an undivided one-sixth interest therein.
“9. That the defendants Ellis and Matthew undertook to de^ fraud the plaintiff of his interest in the mining claims located under said contract, and that the taking down of the notice of location containing the names of Matthew and Wilkinson, and substituting for it a location notice in the name of Wilkinson alone, and the subsequent taking of deed from Wilkinson to Filia (Matthew) for a one-half interest in said claim was a*429 part of the plan entered into between Matthew and Ellis to defraud the plaintiff of his rights under said contract-
“10. That the plaintiff is in no way indebted to the defendants Matthew and Ellis -in connection with the prospecting, locating, owning or recording of said several mining claims, or any of them. That the plaintiff kept and performed all of the terms of his contract for furnishing supplies and necessary materials to the defendant Matthew, and that said locations were each and all of them made during the life of said contract, and during the time the plaintiff so furnished such supplies.”
The defendants Ellis and Matthew in their answer deny having ever entered into the contract as alleged by the plaintiff, and as a further and separate defense set up a written contract between Ellis and Matthew, whereby Ellis agreed to furnish Matthew with provisions "and tools for the period of one year from August 8, 1900, and pay him the sum of $10 per month, and Matthew agreed in consideration thereof to prospect for minerals, and to grant to Ellis an undivided one-half interest in and to all discoveries made by him. The chief contention in this ease seems to have been made over the Wild Eose claim, which is evidently the one of greatest value. The circumstances as detailed in the record surrounding the location of the Wild Eose, and the subsequent record title therein acquired by Ellis and Matthew was somewhat peculiar and singular, and indeed arouse some spirit of inquiry themselves. Matthew appears to have informed one W. S. Wilkinson, the locator of the Wild Eose, where there was some good-looking float and a promising field for prospecting, and in pursuance of the information thus acquired Wilkinson went into the section where he afterward located the Wild Eose, and prospected and discovered what appeared to be valuable ores, and later Matthew assisted in the location of the claim. It appears that the notice of location was prepared and contained the names of Wilkinson and Matthew as locators; but according to the version given by Matthew, Wilkinson objected to having a partner in the claim, and accordingly posted a notice containing his own name alone. After the location, however, it appears that Wilkinson deeded Matthew an interest in the claim, Matthew in
A great number of errors have been assigned by the appellants Matthew and Ellis, some of them going to the rulings of the court in the admission of certain testimony and rejection of other, while others are directed at the insufficiency of the evidence to support the findings. After a careful examination of the various rulings of the court complained of in the admission and rejection of testimony, we are satisfied that no error has been committed in those respects. We do think, however, that it would have been proper for the court to have allowed the question asked the plaintiff on cross-examination, which tended to show that he had been guilty of laches in not asserting his claim in the property sooner. These facts, however, were brought out at other places and frequently in the course of the trial, and we do not think the appellants were in any way prejudiced by the ruling of the court, as the answers, if given, would have only been cumulative.
The main question urged upon this appeal, and we think the only serious question and difficult question presented, is that the evidence as a whole does not support the findings and judgment.
Appellants in their brief say: “The clear preponderance of this case is in favor of the defendants; and under no condition
' Rice v. Rigley decided by this court is so materially different •from this ease in the facts upon which it rests, that we do not consider it decisive of the case under consideration. The ■rule, however, contended for by appellants was announced in that ■case.
The other cases announce’ substantially the same proposition of law. After an examination of practically all of these -cases it is, to my mind, worthy of note that this doctrine arose ■out of an entirely different class of cases from the one under consideration. It had its origin in courts of exclusively chan-
Again, it is everywhere held that in criminal cases the jury must be satisfied of the guilt of the defendant beyond a reasonable doubt, and yet when a conviction was had it has been held that "where there is a substantial conflict in the evidence on the material issues involved, a new trial will not be granted.” (State v. Collett, 9 Idaho, 608, 75 Pac. 271; People v. Arthur, 93 Cal. 536, 29 Pac. 126.)
It must therefore be presumed that, notwithstanding'to how great an extent the rule announced has been applied by the courts, it has never been the purpose of any of them to carry a rule for the security of property and property rights beyond that recognized for the protection of life and liberty.
It seems to me that there is a clear distinction between the class of cases cited in which a trust is sought to be established and eases like the one at bar where all the record title there is was initiated and executed by the defendant and locator himself. The record title to mining claims located upon the public domain is wholly the production and instrument of the locator himself to which no other person is a party; neither is it an instrument of the solemnity and dignity of sealed instruments in any matter in which its office is invoked as a protection solely for the benefit of the locator as against any other person. Especially is this true in a case where the locator invokes the verity attaching to sealed instruments to protect him against the claim of one whose name he should have placed on that notice. It must necessarily follow that when one of the parties to the grubstake agreement asserts his right in a court of equity to an interest in a mining claim located by a party to such contract, he is not in the position of seeking to assert or establish a right which is in conflict with the express terms of a deed of conveyance or other written instrument of like dignity and solemnity. By such action he is seeking to establish a tenancy in common with the locator which does not appear by the record title, created by the locator alone, but which in fact does exist in equity and good conscience. (2 Lindley on Mines, sec. 858; Miller v. Butterfield, 79 Cal. 62,
Appellants have quoted at length in their brief from Chittyna Exploration Company v. Fitch, decided by Judge Wickersham at Valdez, Alaska, November 28, 1903, but we have been unable to find that case reported except as we have read it from the “Alaska Prospector” furnished us by appellants’ counsel. Some of the things stated in that opinion arguendo indicate a conclusion similar to that contended for by appellant here, but the court seems to have decided the case on another point and held that the property acquired by defendants did not fall within the terms of the agreement of agency and employment established by the plaintiff. It is certainly true, as stated in that ease, that the plaintiff in such cases has the burden of proof resting on him, but that is true in all cases. The onus probandi rests on the plaintiff always. (1 Green-leaf on Evidence, see. 74, and cases cited.) Of course we appreciate the fact that a distinction must be recognized between the burden of proof and weight of evidence.
“In a case like this the material issue is: Was the contract alleged by the plaintiff entered into between him and defendant? Here the contract alleged was in parol. Such contracts when established are enforced by the courts where they are executed as to the plaintiff. It is generally held that such partial execution takes the contract out of the operation of the statute of frauds. (Gore v. McBrayer, 18 Cal. 582; Moritz v. Lavelle, 77 Cal. 10, 11 Am. St. Rep. 229, 18 Pac. 803; Book v. Justice Min. Co., 58 Fed. 119; Herbaur v. Feeding, 3 Mont. 21; Raymond v. Johnson, 17 Wash. 237, 61 Am. St. Rep. 908, 49 Pac. 492.)”
When the fact is established that the contract was entered into and the terms and conditions thereof are shown; it will be enforced, whether in writing or parol. It is also true that the courts have quite generally held that in order to enforce the specific performance of a parol contract it must he clearly and satisfactoHly shown to the trial court as to its execution
In actions like the'one at bar, where miners and prospectors must have necessarily reposed a peculiar trust and confidence in each other, it seems to me that the court should not refuse to enforce these “grubstake” agreements simply because a plaintiff cannot produce that great preponderance of evidence which reaches a moral certainty and precludes all reasonable doubt.
Applying these principles to the record before us, we would not be justified in disturbing the judgment of the trial court. An examination of the evidence produced in this case satisfies us that the contract was entered into as alleged by the plaintiff and that the defendants were endeavoring to avoid a compliance with its terms. It is true that practically all the material facts established by the plaintiff are contradicted by the defendants, but if such contracts cannot be enforced by the courts where they are- denied by the defendant and his witnesses, there would be but few cases, if any, in_ which' a decree could bo en-_ tered for the plaintiff. Neither the amount of testimony nor its contradictory or corroborative nature constitute the leading or controlling elements in satisfying a court or jury as to the existence or nonexistence of the fact in issue. It is rather
It is urged by appellants that the plaintiff was guilty of such laches in asserting his claim and prosecuting his action that it should operate as a positive bar to his recovery. In support of this we are cited to 18 Am. & Eng. Ency of Law, 2d. ed., 100; 15 Am. & Eng. Ency. of Law, 2d ed., 1208. In the latter citation it is stated: “While the lapse of time may not be such as to constitute a bar upon the ground of laches, it may still have the effect of requiring a higher degree of proof to establish the trust.” We think this authority correctly states the law on the subject. The evidence of whatever laches of which the plaintiff was guilty was before the court and was undoubtedly considered by him in arriving at his decision in the case. It was contended by the respondent, however, that he relied upon the good faith of his cótenant, or rather the one with whom he supposed he was a eotenant, to protect him and carry out the terms of the contract until about the time a sale was made of a part interest in the property when he discovered defendant’s bad faith. In any event this evidence was before the court and was, we think, sufficient to justify the conclusion at which he arrived.
“It appears that prior to the commencement of this action the defendant Matthew had parted with practically all his interest in these properties, while Ellis still retained an interest in all of them. The court decreed the plaintiff a one-sixth interest in each of the properties and .directed that that interest be taken out of any interest retained by Ellis where Matthew had parted with his interest and was not able to respond to the order and decree of the court. The appellants complain of this action of the court and contend that the whole interest claimed.by respondent could not be taken from the holdings of either of the defendants alone. The appellants, however, seem to have overlooked the fact that the plaintiff charged the defendants Ellis and Matthew, and other parties to the defendant unknown, with' fraud and conspiracy to cheat and defraud him out of his interest, and that by the ninth finding of the court as hereinbefore set out the court found for the plaintiff
Rehearing
ON REHEARING.
A petition for a rehearing has been filed in this matter and carefully considered by fee court. We find no new points raised in the petition that were not passed upon in the opinion in the case, and after a careful reconsideration of the matter and an examination of the authorities, we are satisfied with the conclusion reached in the original opinion. A rehearing is therefore denied.
