21 Colo. 177 | Colo. | 1895
delivered the opinion of the court.
This action was brought by the plaintiff, who is the appellee, to compel the defendants to convey to him a certain 'interest in mining property which the plaintiff claimed by virtue of a contract which was made between plaintiff and 'Millner, one of the defendants. Upon trial to the court without a jury no specific findings of fact were made, but the court made a general finding to the effect that the plaintiff ’was entitled to the relief sought. Upon such finding a decree was rendered directing the defendants to make the conveyance demanded upon the payment by the plaintiff to said 'defendant of sixty dollars, which, upon an accounting, the court found to be due.
An appeal from such judgment to the court of appeals resulted in its affirmance, and from the judgment of the latter court the defendants come here with their appeal.
There are several parties defendant in the action, and questions are here raised and urged other than the principal question in the case, but thej' do not interfere with the decision of the only real controversy which is between the plaintiff and Millner, the original parties to the contract, the proper construction of which contract, in the light of the evidence, settles this case.
The right of the plaintiff to an interest in this property was, by the contract, a conditional one. The agreement was that if the plaintiff should pay the expenses for procuring patents for the two mining claims in controversy, the patentees would convey to him an undivided one quarter interest in and to each thereof as soon as the receiver’s receipt for the same should be obtained.
It is contended that such payment of expenses was to be made as they accrued from time to time, and it will be conceded that such is a fair construction of the contract. It may likewise be conceded that such payment was a condition precedent to the existence of any right of the plaintiff to any part of the property.
The principal effort of appellants’ counsel is apparently devoted to the attempt to demonstrate that the trial court made a mistake in its findings of fact. It is true that the evidence was conflicting upon most of the questions at issue, but there was some evidence to sustain the findings as to every material point in controversy, and there is nothing in the record to show that the trial court, in its findings, was actuated by prejudice or bias. Under the familiar rule of this court, therefore, we cannot, under such circumstances, reverse the judgment upon the ground of the insufficiency of the evidence, even if we differed from the court below as to the preponderance thereof.
There is no question that the plaintiff paid a portion of the expenses of procuring a patent as they accrued. The defendants concede this, and the court must have expressly found that he paid more than three hundred dollars on the same. The evidence tends to show that at the same time there were several similar contracts between the same parties, and that Millner was the active person in the procuring of the patents for all the claims covered by these different contracts. He, rather than the plaintiff, knew what steps had to be taken, and were taken, to procure patents, what was-the amount of the expenses, and what applications upon account of the patenting of these two particular claims had been made by him out of the moneys paid to him, or to his order, from time to time, by the plaintiff, upon this and the several other similar transactions.
Throughout this matter there was a looseness and unbusinesslike method in their dealings and in the keeping of their several accounts by the plaintiff and Millner which might well render it difficult for either to know how the account stood. In these circumstances the case was a proper one for an accounting. From the conflicting testimony the court found that sixty dollars was still due on the expenses of procuring a patent for these two claims, and we are not disposed to say in the light of the evidence that this was not as fair an ascertainment as could be made.-
Then, too, assuming the correctness of the finding of fact, as we do, the plaintiff has shown a valid reason for not having strictly and fully complied with his contract with respect to making these payments as they became due, and it would be inequitable to refuse relief when it is in the power of the plaintiff now fully to perform in accordance with his offer to do so, particularly when it was the fault of Millner, rather than that of plaintiff (if there was any fault on the part of either), in not giving to the plaintiff information as to the status of the account, which, as to some of its items, Millner alone seemed to possess. Having the right to an undivided one quarter interest in and to the property, provided he paid
Affirmed.