17 Wash. 232 | Wash. | 1897
The opinion of the court was delivered by
Respondent brought suit to have appellant Johnson declared respondent’s trustee for an undivided one-fourth interest in the Keystone Quartz Mining Claim, located in Flathead county, Montana; and to have the defendant Finch pay to respondent part of the bonded price of five-sixteenths of the claim, which is claimed to be proportionate to respondent’s interest, instead of paying the same to appellant Johnson, through the defendant bank, as required by a bond held by Finch from Johnson; and in default of Finch’s paying the price mentioned in the bond, that then appellant Johnson be required to convey to the respondent an undivided one-fourth interest in the claim; and that the defendant, the Exchange- Rational
The fourth allegation of the complaint is as follows:
“ That in the summer of the year 1895 the said plaintiff •and the said defendant S. W. Johnson entered into a mining partnership by which they mutually agreed with each other that they would each diligently prospect for and locate and develop mines, mining claims, water rights and mill-sites in the states of Idaho and Montana on the public lands of the United States and upon discovering or acquiring the same or any such that they would locate and hold .and work the same in the joint names of and for the joint use and benefit of the plaintiff and defendant, Johnson, and that they should own in equal shares any and all mineral claims, mines, water rights and mill-sites so discovered or in any manner acquired by either of them.”
Respondent alleges that he has duly performed all the •conditions of the agreement on his part and that he diligently prospected as required by the agreement, in behalf of Johnson and himself; that while respondent and Johnson were prospecting, in pursuance of the agreement, they discovered some float or particles of ore which they thought came from a ledge of ore further up the mountain or hill upon which they Avere working, and Johnson requested respondent to follow up and trace the float and prospect for a supposed ledge from which the float was thought to have come, and that he, Johnson, would go over on the other side of the mountain and search there, under the agreement, for mines and claims, and that while respondent Avas prospecting on the float, for the equal benefit of himself and Johnson, the latter Avent over the mountain or hill and continued to work, and there, Avith one Whitcomb, Avliom he chanced to meet, Johnson discoA'cred a great and
The superior court, after hearing the testimony, found that the defendant Finch was trustee having charge of the matter of the bond for other persons, and that the averments in the fourth allegation of the complaint were true; that the respondent had performed his agreement; that the contract for partnership in prospecting and locating mines as set forth in the fourth allegation of the complaint was carried on and that Johnson discovered the quartz mine described while such agreement existed; that the mine was located in the names of Johnson and Whitcomb; that Johnson had excluded respondent from any interest therein, and that Johnson had made the conveyances and the bond alleged in the complaint. The tenth finding by
Defendants moved for a new trial, which motion was overruled. Defendant Johnson excepts to several findings of fact, on the ground that the evidence is insufficient to justify the same. It is not necessary here to review the testimony. It has been carefully examined, and we are satisfied with the conclusions of fact reached by the superior court. The respondent and Johnson agreed to prospect together and share alike the benefits of any discovery or location of mining properties, water rights and other things mentioned in the'fourth allegation of the complaint. It is true there was but little investment, if any, beyond a small “ grub stake,” by either in the enterprise, but they were to put their labor into it. Each was to diligently and faithfully prospect. In mining operations this is usual. Frequently very humble and small beginnings lead to great results.
We observe no error in the superior court’s ruling upon
Defendant urges here that the contract between respondent and Johnson was oral and is within the statute of frauds, as expressed in § 1422, 1 Hill’s Code. This contention cannot be maintained. The defendant Johnson, if the acquisition of the mine was an interest in real estate, would be a trustee. The weight of authority in the mining states is that such contracts are not within the statute of frauds. Gore v. McBrayer, 18 Cal. 583; Hirbour v. Reeding, 3 Mont. 15; Murley v. Ennis, 2 Colo. 300; Welland, v. Huber, 8 Nev. 203.
Appellant’s answer to the fourth allegation of the complaint is a denial of information or knowledge sufficient to form a belief as to the facts set forth in the paragraph mentioned. It will be observed that the averment is an agreement between respondent and appellant. Presumptively appellant had positive knowledge of these facts. The approved rule seems to be, when snch knowledge is with the defendant, he cannot evade a positive denial by a disavowal of knowledge. We very much question whether the answer to the fourth paragraph of the complaint is sufficient to raise any issue of fact.
The judgment of the superior court is affirmed.
Scott, O. J., and Dunbar, Anders and Gordon, JJ., concur.