62 P. 695 | Ariz. | 1900
On and prior to the twelfth day of May, 1892, John Lawler and Ed. W. Wells were the owners and in possession of the mines and mining claims located in the Eureka mining district in Yavapai County, Arizona, known as “Hillside,” “Happy Jack,” “Contact No. 1,” Contact No. 2,” and “Camp,” and locations known as “Midnight,” “Morning Glory,” “Water,” “Hidden Treasure,” “Sucker,” “Side,” “Purple Rose,” “Southern Belle,” “Robert E. Lee,” “Lucky Cuss,” “Centipede,” and “Good Enough,” which are hereby denominated and will be hereinafter referred to as the “Hillside group of mines.” The muniments of title showing such ownership in Lawler and Wells were
On October 28, 1892, H. H. Warner, in Prescott, represented to Lawler and Wells that he was unable to place securities that he held in time to meet the payment of that portion of the purchase price falling due November 12, 1892, and, relying upon said representations, on request of Warner, Lawler and Wells, on October 28, 1892, agreed to an extension of the time of payment under the agreement of May 12, 1892, and provided that the original agreement remain in full force except as to said modification touching the time of payment. On May 8, 1893, Warner made a general assignment of his property for the benefit of his creditors, and on May 11, 1893, Lawler and Wells, knowing of the assignment of Warner, executed an agreement with Charles Cowland stipulating that the payment mentioned in the original escrow agreement as falling due on May 12, 1893, may be made by said Cowland as follows: $9,098 in cash, and $4,500 to be paid on the first day of June, 1893, and the like sum to be paid on the first day of each of the following months,—viz., July, August, September, October, and November. A part of the consideration for the agreement for the extension of the time of payment was the issuance and delivery to Lawler and Wells of fifty thousand dollars, par value, of the guaranteed capital stock of the Seven Stars Gold Mining Company, and the appointment of John Lawler manager of operation of the Hillside group of mines; and John Lawler, on May 13, 1893, entered upon his duties as such manager. On the eighteenth day of August, 1893, the chancery court of New Jersey appointed John Griffin receiver of the Industrial Mining and Guaranty Company, and the said John Griffin qualified and entered upon his duties as receiver that day. The Seven Stars Gold Mining Company, from October 1, 1892, until August 17, 1893, continued to occupy and operate the Hillside group of mines under and by virtue of the occupation thereof so given to it by the Industrial Mining and Guaranty Company, under the terms, conditions, and provisions contained in the escrow agreement of May 12, 1892. On September 1, 1893,
During the life of the Industrial Mining and Guaranty Company it was engaged in promoting sundry mining, railroad, and industrial enterprises, including the business transactions of the Seven Stars Gold Mining Company. During that time it received and disbursed the sum of $824,142.13.
Some of the. assignments are too general and indefinite to receive any consideration by this court. The first assignment alleges that “the district court erred in decreeing that plaintiffs are entitled to no relief in the case.” The fifth assignment alleges “the court erred in refusing and rejecting the findings of fact, and each of them, submitted by plaintiffs,” referring to nineteen different findings submitted by plaintiffs, only eight of which are presented in the abstract of record furnished this court. The fifteenth assignment of
The second assignment of error alleges that “the court erred in not decreeing relief to the plaintiffs pursuant to the first prayer of the amended complaint.” The complainants pray, first, that the court decree that the defendants Lawler and Wells have by their conduct estopped themselves, and they are now estopped, as against the plaintiffs and others in like estate, from asserting that the Seven Stars Gold Mining Company is not the owner of the property described in the prospectus and pictured on the map, and that the court order, adjudge, and decree that the full title to the said mines and mining properties, and every part thereof, is in the Seven Stars Gold Mining Company; with prayer for perpetual injunction, money judgment upon an accounting for proceeds of ore and bullion taken from the mine between the 12th of May, 1892, and the date of entry of final decree, and money judgment for damages, said money judgment to run to the Seven Stars GMd Mining Company, in the interest and for the benefit of bona fide stockholders, plaintiffs, and others in like estate. This assignment raises and presents squarely the question whether the facts pleaded and sustained by the proof constitute an equitable estoppel against the defendants Lawler and Wells. The supreme court of Utah has said, in Bingham Young Trust Co. v. Wagner, 12 Utah, 1, 40 Pac. 764: “Mat
We, will next proceed to the consideration of the grounds of estoppel that have been shown in connection with the American prospectus and the accompanying map. It is alleged in the complaint that “On or about the 21th day of September, 1892, the said Lawler, as agent of the said Wells, and acting for both of said defendants, well knowing the condition of the title, of the said mines, on his own behalf and on behalf of said Wells assisted and aided the said H. H. Warner to prepare, and cause to be issued, a prospectus reciting, among other things, on the second page of said prospectus, ‘This company is formed to acquire, without further expense or liability to subscribers, on October 1st, 1892, as a “going concern,” and to provide a working capital to further equip and develop the “Seven Stars” and “Happy Jack” mines, also the locations “Mesa,” “Elwood,” “Midnight,” “Waterfall,” and “Boulder” ’; that accompanying and a part of said prospectus there was prepared a map or plat of said mining properties by the said Lawler and Wells and the said Warner, upon which map the following representation and statement appears, ‘Map of the group of mines belonging to the Seven Stars Gold Mining Co., Yavapai County, Ari
The disposition of the questions above determined will render unnecessary a consideration of the third and fourth assignments, as they refer simply to the alternate prayer for relief in the complaint, based upon the same allegations of fraud and misrepresentation upon which the error alleged in the first assignment was predicated.
It is next assigned severally, in the succeeding eight assignments of error, that the court erred in rejecting the third, seventh, ninth, tenth, eleventh, fourteenth, fifteenth, and nineteenth findings of fact submitted by the plaintiffs. An examination of these several findings discloses that the third finding, as requested, was not sustained by the evidence in the case, and therefore was properly rejected. The seventh finding related only to evidentiary facts, the refusal to find which by the trial court will not be reviewed by this court. The ninth to nineteenth findings, inclusive, request the finding of a number of evidentiary facts, some, of which were elsewhere found by the court, some of which were adversely found on conflicting evidence, some of which were not proven by any evidence appearing in the record, and many of which were not material, but were simply incidental facts which would only amount to evidence from the which the ultimate fact might be deduced. A- careful examination of the facts requested to be found in the several findings enumerated and of the evidence as shown by the record has failed to disclose
It is argued in the brief of the appellants that the defendants
It was also argued that the receipt by Lawler and Wells of the returns from the ore should likewise operate as such estoppel, but the evidence likewise disclosed that such disposition of the receipts from the ore was in accordance with the provisions of the escrow agreement, of which the Industrial Mining and Guaranty Company and the Seven Stars Gold Mining Company were fully cognizant; and Lawler and Wells would not be responsible for any fraud practiced on the stockholders of such company by the officers and the directors, of which they were as ignorant as the stockholders; and as the only dealing of the officers and directors with such stockholders of which Lawler and Wells had any knowledge was consistent with honesty and fairness, and apparently in harmony with the provisions of the escrow agreement under which they were working, and of whose provisions Lawler and Wells supposed the stockholders to be as fully advised as the officers and directors, there would be nothing to put Lawler and Wells upon inquiry. The facts pertinent to these issues have been found by the trial court, and such findings have been based upon evidence contained in the record.
Street, C. J., and Davis, J., concur.
Sloan, J., having been connected with the case as counsel, took no part in its consideration in this court.