*1 MADRID, Appellant Louis S.

(Plaintiff below),

v. NORTON, Appellee

Edgar F. below).

(Defendant NORTON,

Edgar Appellant F.

(Defendant below), MADRID, Appellee

Louis S.

(Plaintiff below). 5041, 5042.

Nos.

Supreme Wyoming. Court of

June

H09 (argued), William H. Brown Claude Martin, Casper, appellant. W. for (argued), Casper, Houston G. Williams for appellee. J., RAPER,

Before C. and McCLIN- TOCK, THOMAS, ROONEY, JJ. ROSE RAPER, Chief Justice.

As the result of the dissolution of a ventures, the district court appellant awarded (cross-appellee) (hereinafter plaintiff plain- Louis S. Madrid tiff) judgment appellee against (cross-ap- (here- pellant) Edgar defendant F. Norton defendant) judgment upon a claim inafter total amount accounting for an plaintiff appeal in this IG.OSO^S.1 inadequate that sum and as- claims to be it: serts errors the trial court in that up that Norton live 1. Failed to demand fiduciary his rela- obligations tionship. recognize that the informa-

2. Failed to and Norton had tion assembled Madrid substantial value. is information

3. Held that confidential fiduciary rela- one the elements of a tion. relationship legal be-

4. Held consisted of tween Madrid and Norton series ventures. ADJUDGED, ORDERED, judgment pertinent part:

1. The IS “IT FURTHER upon claim Plaintiffs AND DECREED that ORDERED, ADJUDGED, “IT IS AND DE- money accounting, that Plaintiff have and nothing CREED that Plaintiff take judgment against the Defendant recover Complaint filed, herein insofar as he claims $2,016.75 the Fifield draft and the sum of $4,033.50 gas an interest in oil leases described draft, and that such for the Jenkins Complaint, judgment in Plaintiff’s and that accounting complete is and final.” against favor of Defendant and Plaintiff Complaint such demand in Plaintiff’s be and hereby entered. appeal the defendant admits his cross 5. Held that between vague $2,016.75 was so as to its and Norton on the “Fi- plaintiff that he owes terms as to be unenforceable. payment bonus but claims the field” 6. Found that Madrid and Norton $4,033.50 erroneously due judge found Boner, Reeder, share payment bonus plaintiff on the “Jenkins” *3 Waring they and leases after terminated and, addition, urges there should have in their venture. owing out of been credit $721.20 The defendant contends the true issues to any “Diamond Shamrock” be: plain- due defendant amounts found sup-

1. Was there sufficient evidence to tiff. port finding the trial court’s will affirm. We Madrid and Norton their rela- terminated particular While in case it adds to this 15, 1975, tionship January on or about opinion, findings of fact of length of the agreeing specific there were three judge separately stated and num- the trial they equal leases in which would share an interest, agreeing narrative and further that each will be used as the factual bered was to be free to obtain leases for his disposi- are critical to a parts since of them own account? accurately they tion of the case and because 2. Was the trial court correct in con- its testimony and exhibits. reflect the record relationship clusion of law that once the they as We include them also because serve between Madrid and Norton had termi- what the bench and bar of an illustration to nated, Norton was free to lease for his compe- professionally and we consider to be own account and was entitled to retain tently findings of fact. In a com- prepared the leases he did own obtain for his case, plex findings aid such well-formulated account? disposing appeal and in this court in support 3. Is there sufficient evidence to understanding precise questions finding the trial court’s of fact and at- why they presented to the trial court and tendant conclusion of law that the rela- While we must they were decided as were. tionship between Madrid and Norton was findings against pages the 474 verify the a series of ventures which ended on exhibits, transcript and 60 some defendant’s 15, 1975, January or about mutual by annotating in his counsel eased that task agreement agree- and that there was no finding of fact to the record. brief each ment between Madrid and commence a fourth venture? Plaintiff, Madrid, Defendant, “1. and 4. Was the trial court correct in conclud- Norton, experienced gas oil and are both ing from the alleged evidence that Their associa- landmen and lease brokers. to continue a when Ma- January in tion commenced vague between the was so as to be (authority acquire oil drid a ‘ticket’ had unenforceable in event? account, gas and at the and leases for the (i) Notwithstanding such conclusion on another) an expense, Haynie, from one court, part of the trial was the trial broker, in independent gas oil and court ulti- nevertheless correct its Wyoming. County, Sheridan mate decision grounds? on other another “2. Madrid used Norton and sup- Was there sufficient evidence to checking county to do the work of landman port findings the trial court’s and conclu- gas leases obtaining of oil and records and that, sions upon termination of the rela- private mineral owners in Sheridan tionship between Madrid and Norton on County. job completed within was 15, 1975, about previous Haynie. During boundaries established fiduciary relationship between them did project, County on this work Sheridan beyond continue the termination date there Norton obtained information to the leases involved case? project near the were other lands

mi they for oil gas, might unleased and and he sell company be- well it to said and lieved acquired that leases could be make profit. They such discussed matter lands prices (bonuses) agreed upon reasonable to embark second ven- delay agreed reasonable rentals. ture. They to limit the amount of acreage obtained, previously, to be “3. Madrid Norton discussed the leasing the area in which agreed they would, matter and attempted. joint account, attempt to obtain oil Norton, work, gas 15,000 doing again leases on the field approximately acres. obtained a second block agreed County of Sheridan approxi- Madrid to obtain acreage. $75,000 leases; again mately pay to ar- for the and at range money negotiate for the price per and to acre believed money sale. The from the of the first sale pay, acquisition the acreage put block was in Madrid’s own bank account 15,000 necessarily limited to about acres. made disbursements were later from it They agreed that Norton would check the *4 by Madrid. negotiate records and the leases and send bonuses; drafts on pay Madrid’s bank to the County “7. The second block of Sheridan Madrid arrange approximate would acreage Michigan-Wisconsin sold to was $75,000 this, to do and Madrid would en- Pipeline Company immediately. almost gage trying in to sell the block to someone. Again, money placed was in Madrid’s They agreed to profits divide whatever account. were equally, realized both to money as and Having “8. two successfully obtained overriding royalties. reserved This was the acreage, again having blocks of sold the and agreement extent of their at that time. inventory leases, entire Madrid and Nor- “4. Norton obtained the block of acre- attempt together ton put decided to to age agreed, as and sent to drafts Madrid for County acreage— third block of Sheridan payment. thirty-day drafts were again acreage again in in an limited and and, prior dates, drafts to the due agreed Madrid obtain- county. area of Norton agreement made an Marty block, with constituting one Fried- ed as leases a third man pay However, to agreed. drafts when due. Madrid was this time agreement Friedman, that not in sale of the making was successful a fast sale block, companies block, although many third were would be repaid moneys he advanced, solicited him. and three would then share equally any profits made on the “9. had a third Madrid and Norton now sale. The block of first leases was sold to inventory acreage substantial in- and a Shamrock, Diamond and the costs, acreage acquisition vestment in performed. Madrid and Norton had no They readily was not saleable. discussed leases, more having sold entire first pack- steps to third to be taken make their block to Diamond Shamrock. After age buyers. prospective more attractive to block, first longer participated Friedman no attempt They agreed they go to should subsequent Madrid and Norton in ac- County, pay into more for some Converse tivities. leases, County put better the Converse third with the Sheri- into the block “5. negotiating While sale of the County dan offer such block for leases and block, first offer an to sell made County They sale. examined the Converse Michigan-Wisconsin Pipeline Company. public and used RIMC-0 POM- records However, company agree not would maps CO determine which leases the amount overriding royalty Madrid purchased by expiring. maps may These reserve, proposed to-wit, Norton 6V4 mineral anyone they show price, for a percent. believed, Madrid and Norton ownership on them. information Michigan-Wisconsin’s expressed interest area, they together if in Converse put selecting could “10. the area attempt leasing, second block County acreage, County of Sheridan within following final Madrid and tried to select lands in started to deteriorate complaining about Ma- vicinity of an ‘axis’ which was well sale. Norton handling money, and Madrid people drid’s known to oil and was delineated objected secretary coming to his public records, to Norton’s geological particularly the through files. Conse- going office and Geological Survey United States records. meeting in quently, Norton asked for a dealing In none of their either place Denver with Madrid and this took knowledge or Norton ever have to or access January They discussed or about technical, data, geological engineering or arisen, briefly the difficulties which had particular suspected pool and no or of oil any associa- agreed and both to terminate gas except may was known to them together. at one time dis- They tion general been of knowledge in the oil busi- becoming partners, cussed Also, ness. Madrid and Norton never drew so, having do each done work for himself up any map, any agreement upon, nor made participation by during with no other specific nor delineated a area in which to period question. They concentrate simply efforts. tried, least, County in Converse at to secure meeting, “15. At the acreage production near known areas of asso- having agreed to terminate their interest. ciation, specifically dis- Madrid and Norton War- cussed what was to be done about the acquire Madrid and Norton did ing, Boner-Schlichting and Reeder leases. County, leases in paying Converse more for They agreed were close to obtain- them than County acreage. for the Sheridan ing these leases and that They packaged the leases in the two coun- *5 could, they ahead and them if sell obtain together ties and this time were successful them, They profits equally. and divide the selling in the third block to Diamond Sham- any They did not discuss other leases. 29,1974. rock on October Norton continued forward, except agreed that date that from doing some title work on this block of leases leases, they for three named County in Converse during and November is, thing’; ‘each his own each would do December part 1974 and the fore of Janu- account pursue be free to leases for his own ary They again were once out of at his own risk. and leases. Waring “16. Norton later did obtain the “12. No further by was made lease, a valuable lease which was Madrid and Norton to leasing commence discovery. Spearhead the area of the Ranch period fourth block. There followed a of assigned interest to Madrid He a one-half relative inactivity part on the of Madrid they sold the lease and divided They and Norton. decided to send out in- profits, including overriding royalty, equal- quiries to some prospective additional les- ly. Boner-Schlichting Madrid obtained sors, price with a paid much below that for leases. He tendered to Norton Reeder County Converse leases did obtain. by a one-half interest letter dated March unsuccessful, entirely This was and no fol- 19, 1975, advising without Norton of low-up attempted by was party. then either paid any bonus of the terms Bon- had, “13. during Madrid and Norton er-Schlichting prior filing lease. Just activities, leasing made contact with lessors of by by Madrid of letter this action respect leases, prospective to three 1, 1976, March Madrid tendered to Norton by lease, known Waring them as the one-half interest in the Reeder lease lease, Boner-Schlichting and the Reeder year prevoiusly. acquired he had almost They lease. had not obtained such leases at 4, was filed on March This action [sic]. the time of the sale of the third block and 1976, against Both let- by Madrid Norton. did not package include them in the sold to acceptance by placed ters a deadline for Diamond Shamrock in October 1974. letters, these Norton. When he received “14. Personal no respond relations between Madrid as he wanted Norton did not Norton, employees, between their with Madrid. more do

1H3 Following acquisi- “20. With meet- to Norton’s Denver, ing in Madrid and Norton both tion of the Sullivan had Norton acquiring interested in leases in Con- county checked the records and had ob- County, verse for each his own account. an existing served that lease had a termina- immediately Norton went to Converse tion upcoming date when he was in Con- County purpose. himself for Madrid County verse in October of 1974. This lease period time waited and then sent a many was he and had one of Madrid landman, him, by hired into Converse Coun- discovered from their examinations. Nor- ty to obtain leases for Madrid. Madrid also Sullivan, Joseph attorney, ton wrote instructed the landman to observe what Douglas, Wyoming, at October doing. attempt Norton was Madrid’s was having been referred to Sullivan highly and in unsuccessful and the Wyoming Bank Casper, National fell landman out found because Madrid out depository expiring bank on the re- named had landman taken a lease for corded lease. Mr. answered Sullivan himself which and felt Madrid wanted letter on him October and advised should been taken for Madrid. Macken, of the death of Cecilia the lessor hand, “18. On the other Norton suc- expiring named in the lease. had Norton in acquiring gas cessful several oil and leas- land, part offered to lease a of Macken es for himself. These are described in Ex- it, 18, 1975, all of a letter October Complaint. hibit ‘A’ to Madrid’s From Jan- bonus, per acre the re- $25 15, 1975, uary any never made de- price he duced and Madrid had any mand on Norton interest required pay offer. had been more They leases, these nor was there discussion of than such twice amount for the Converse them pro- between Madrid and until County acquire. obtained, duction was in November them, one of the so-called ‘Sullivan’ lease. “21. Norton was refused Sullivan Madrid knew in March 1975 that Norton Will de- advised the Macken had taken the Sullivan lease. In Madrid’s vised the mineral interests decedent letter March which he sent to percent Margaret, to Sullivan’s wife *6 conferring Martin, Norton after with Mr. McGovern, percent and 20 to Rev. Terence made, one his attorneys Casper, of he for percent Woods. to Rev. Colm Sullivan time, the first some reference other leas- devisees, wife, Margaret, his on of all behalf by saying, es T appreciate your would re- the refused deal on a new lease until viewing your if files determine the same Nothing fur- Macken was closed. Estate possibility exists relative to leases ther with occurred Sullivan you might acquired which and that a 15, January 1975, when lease until reciprocal arrangement be in order associ- their Madrid and Norton terminated by original virtue of ation. existed between us.’ At the time of this 29, 1975, some January “22. On 1, letter, March 1976 knew Madrid competition Compa Petroleum from Woods production there was on the lease Sullivan lessee, ny, prior negotiated Norton and that Norton had obtained and the owners, Margaret lease from mineral other leases described Exhibit ‘A’ to Sullivan, Woods. Complaint and Rev. days three Rev. McGovern filed later. by Norton original October 1974 offer “19. Madrid no keep made real effort to ia 23, Town included the E of Section 15, in contact with January Norton after North, ship lease Range 40 74 West. His They purpose met in Denver for the hole in dry card that he knew of a shows settling of moneys their account of SE n 30, Township same of Section owed, but there was no with re- discussion 12,951 feet, card Range, and the drilled to spect by party leases taken either while knew that his own name. shows that Norton accounting sep- will be only the arately expiring discussed hereinafter. Macken lease covered 1114 23,

E ½ of Section also the of Exhibit ‘B’ in evidence hand- SE ¼ shows some 31, Section 30 and the NE ¼ of Section typewritten written entries Madrid’s entered a ‘disregard note thereon to Secs. $22,663.83, agreed figure sheet. The 30 & 31.’ negotiated When Norton by and this was owed Norton Ma- amount lease, required by Sullivan he was the les drid. wrote a check in the Norton Madrid sors to acreage, include all of and not $22,663.83 72) (Exhibit amount of contain- just the E ½ of 23. He also Section had to ing Payment.’ Also notation ‘Final apd pay acre, per bonus of to increase $55 written on the check were certain lease royalty percent landowner’s to 14 from numbers of for which Madrid had not leases commonly percent. offered 12½ Norton payment by received Diamond Shamrock did not consider the lease Sullivan the sale of the third and block. final as valuable Waring as the which he “25. Norton admitted on the record that and Madrid shared January under their $2,016.75 obligated pay he is Madrid agreement. 1975 termination holding Madrid from “23. productive, While not the other the Fifield draft. by 15, January obtained Norton after obligated pay “26. Norton is 1975, were also included in Madrid’s suit $4,033.50 repayment written of a check against covering Norton. Two leases personal pur- on Madrid’s account for the North, S ½ of Township Section Range 36 pose acquiring the Jenkins This lease. West, 73 from Paul Grosch and wife and amount was not accounted for in the de- Norton, Herman Hersch and wife to suf- accounting tailed between Madrid and Nor- fered a by failure of title prior reason of ton in late November 1975. recordation of a conflicting lease. The Har- less and Tonkinson leases in the ¼ drilling SE The so-called Rohres ven- Section NE n Township Section 39 ture in partici- which Madrid and Norton North, West, Range 74 by secured pated transaction, separate, was a isolated 15, 1975, Norton after January on new in way no connected with the transactions Also, terms made Norton. the Bolley bearing recited hereinabove and it has no Phillips covering Lots 3 and thereon.” ¼, S ½ NW SW ¼ of Township Section judge explained What the trial did is best North, West, Range 74 were dated after by setting commendably comprehen- out his 15, 1975, January paid and were for in sive of law conclusions distilled from March 1975 Norton. The Ulrich lease on foregoing statement of As will be facts. SW Vi NW ¼ E Section ½ NE ¼ seen, the conclusions do include a combina- North, Township Section Range tion of ultimate facts as well as conclusions West, 31, 1975, dated and was of law and painstaking analyses are paid Norton in March 1975. The respect. noting useful to us in that After Savage lease covering NW Vi NE ¼ of *7 jurisdiction paragraph the the court in 21, Township North, Section Range “1”, they go on to that: conclude West, originally negotiated was for Nor- ton in November and December of 1974. This ultimately lease was January obtained upon foregoing Findings “2. Based the

27, 1975, for a bonus more previously than Fact, legal the Court concludes that offered and for an excess roy- landowner’s relationships between Madrid and Norton alty. All of these leases are in three differ- joint Wy consisted of a series of ventures. townships ent from the Sullivan lease. Weston, oming Indiana Oil & Gas Co. v. et al., 526], Wyo. (Wyo.1932); 7 P.2d 206

“24. Madrid and [43 Norton met in Denver Hoge 423], v. George, Wyo. on an 200 P. 96 accounting them, for moneys between [27 Rhoades, (Wyo.1921); sometime after Reece v. January 1975 ter- [25 Wyo. 91], mination meeting. brought (Wyo.1917). Each 165 P. 449 The first meeting typed containing figures. acquisition sheet involved the of a block of oil agreed An sum then gas arrived at County, Wyoming, leases in Sheridan

1U5 parties agreed which the approxi to, would be agreed did, met and terminate 15,000 mately agreed upon acres and further They association. had previously general leasing. area of The first discussed becoming partners, ended rather than upon joint venturers, sale of the entire block to Dia but neither party agreed to mond Shamrock. a partnership arrangement. This venture also in joint venturer, volved a third Friedman. date, “6. As of the par- termination Upon completion venture, of such ties acquiring were close to three additional Friedman longer was no associated with the leases, Waring, Boner-Schlichting, and parties in subsequent joint ventures. They Reeder. specifically agreed to (Bracketed added.) material jointly ahead acquire these leases. This done, “The joint assigned second agreed venture was Madrid a one-half Waring. interest in the parties. advance It consist- acquired the Boner-Schlichting and Reeder acquisition ed of the of a second block of leases. He tendered an interest in the first leases in County, again Sheridan in a block to Norton fairly promptly, but held the 15,000 20,000 of approximately acres and year second for almost a before he tendered disignated area, in a to be sold as soon [sic] to Norton an Signif- interest in the second. possible as after being obtained. This ven- icantly, the latter tender was made ture ended when all the leases in the second days three prior filing to Madrid’s of this block were Michigan-Wisconsin sold to action to recover interests in other leases Pipeline Company. parties had no 15, 1975, taken January Norton after more leases after such sale. and after Madrid had conferred with one of “The joint third again venture was attorneys. agreed upon in advance as to locale and Upon termination, again acquired to be resale. size — 1975,of the association between Madrid and saleable, When not readily parties Norton, joint whether were still ven- acquire some additional leases in not, pursue turers or each was free to leas- County done, Converse and when the third ing activities for his own account. The Shamrock, block was sold to Diamond leav- Supreme Kansas, gas Court an oil and ing parties again without leases. case, (citing stated the rule to be 46 Am. purposes “The of the three ventures Jur.2d, Ventures, pp. 75): Joint § accomplished agreed upon by the ‘Obviously recovery by there can be no parties. property acquired by one coventurer for “3. There was no between another after the venture has been parties commence a fourth ven- completely Clearly, terminated . . . ture, prior as was done to commencement where a been has formed prior three parties ventures. The acquisition, ownership, develop for the or again had sold all the leases had ac- property, ment of certain the fi defined quired in the third venture and it was com- duciary relationship not does forbid pleted, except for some title curative work acquisition, ownership, development by which was later done. parties one for his own benefit of “4. The agree attempt property enterprise embraced acquisition of some additional leases in scope.’ Foley [sic], Con- and outside its et a. verse County by sending al., prosepc- Phillips, letters to et 508 P.2d [979-980] lessors, tive price at a (Kan.1973) (Bracketed added.) which was half [sic] material *8 or less than price half of the they paid “8. The evidence taken as a whole has for the County Converse put leases in the failed to contention that establish Madrid’s block, third but were not successful in ob- joint encompassed venture the Powder taining any leases in this fashion. interest, River the area of Basin as On or January established, about or after even if it terminated on period 15,1975. relative inactivity, parties January Plaintiff has failed about “Contrariwise, joint parties admit proof to sustain the burden of that the both any venture as to continued said date terminate their relation- intended to par- but the three named which the leases point, ship, whatever it was at specifically agreed subject ties would (retaining separate ways their division interest between them. Plain- acquisi- prospects three named leases or tiff testified that he mentioned the fact tion). having agreed specifically Without might parties that there be other leases the leasing prospects; without hav- upon other should talk Defendant denied such about. area; having ing agreed upon an without may, conversation. Be that it was upon prices and other terms of leas- agreed admitted Plaintiff that no further dis- es; financing any agreement for without place, cussion did take and he made little or blocks; or and with no any further leases attempt any no to assert interest in any having place ex- further conferences taken mentioned, other than the three from accounting, cept up money wind 15, 1975, 1, 1976, until March at agreement there is no to enforce. It should which time general he made a rather refer- three parties, be observed that the on the ence to other leases in a letter to Defend- ventures, difficulty in previous had no days ant. He did three this before he conferring arriving agreement at on all brought suit. He had known of Norton’s prior matters commencement of these leasing time, activities for some and had termination, they agreed work. Once known since March 1975 that Norton had actions, inactions, parties of both or obtained the Yet Sullivan lease. subsequent entirely to termination are con- made no claim or demand whatever as to an having been no further sistent there any acquired by interest in Norton brought. until this suit was the leases de- agreement with complaint. scribed in Plaintiff’s significant “It is most that Madrid’s de- mands after it arose was known that the fiduciary that a “10. Madrid contends productive. Up Sullivan lease had become termina- relationship nevertheless survived occurred, until this particu- evidenced no certain infor- tion because Norton obtained lar interest in Norton’s activities. mation while associated with Madrid “9. As to Madrid’s contention that the ventures, three which Norton later used to continued, venture at best Plaintiff is advantage Unlike other at a later date. asking alleged the Court to enforce an the fidu- cases where courts have extended agreement vague that is so as to terms as to law, here ciary relationship as a matter of be unenforceable. In those instances where there was no confidential information courts have enforced agree- specific geological obtained. There was no ments, activities, gas leasing as to oil and Madrid or Nor- information known to either the Plaintiff specific established a area of ton. The information had was obtain- interest, the length agreement, of term of records, by anyone public able from the or agreed upon. various items maps any which were on sale to mem- courts, however, will not make a contract public. they agreed to ber of the When themselves, for the they, part company, they both had information Phillips Hamilton, not made. Wyo. [17 obtained within the time frame of 41,] (Wyo.1908). 95 P. 846 association. “Here, then, map was no legal descrip- “They each was to be free to interest; tion delineating alleged area of his own. At pursue leasing activities on of; spoken no time limit agreement no time, only point three leases prices established as to paid to be They had no other close to obtained. leases; agreement no respecting was made category. It is a fact that prospective acreage; sale of nor were immediately work and later went to items of established which successfully. Madrid pursued some leases continue a venture between the parties. so, a landman chose not to do but later sent

1H7 employ try judge. in his to obtain other leases. district There are appellate settled choice, follow, apparently concepts This was a bad as a which we all for the most dispute arose part party prevailing as to whether the landman favorable to the took a lease for himself which appealing party heavy Madrid want- trial court. An has a event, ed. In Norton should not be burden to overcome. We must assume that penalized just promptly because he went to party the evidence in favor of the successful true, work. entirely is leave out of consideration party the evidence of the unsuccessful reasons, foregoing “For the the Court give conflicts with it and the evidence of fiduciary holds that the relationship created party every the successful favorable infer- parties between the to those ence may reasonably fairly which and be successfully completed ventures Jelly Dabney, Wyo.1978, drawn from it. v. ventures, not beyond those but existed 624; 622, 581 P.2d v. Laramie Rivers Co. only within them since all were defined and Co., 1241, Wyo.1977, Pioneer 565 Canal P.2d agreed upon relationship and since the be- 1243-44; Wyoming Digest, Appeal West’s tween the by was terminated case, & Error agreement. special findings there were of fact which “11. As right to Madrid’s assertion of a must liberally favorably be construed equal to an share with the oil and judgment. presume to the We gas leases described in Plaintiff’s Com- right findings are of the trial and where the plaint, the Court holds that Plaintiff has court are not inconsistent with the evi- failed to proof, sustain the burden of dence, erroneous, clearly contrary law, all the evidence and the evidence, great weight will of the generally Court finds in favor of Defend- Manage- appeal. be disturbed on Diamond ant, Norton, Plaintiff, Madrid, against Corp. Empire Corp., ment v. 594 P.2d Gas judgment will accordingly. be entered (1979); Haynie, Wyo.1976, 964 LeBar v. 552 “12. owing Norton admitted Madrid Moreover, judge the trial P.2d 1110. $2,016.75, being one-half return bo- present and observed at first hand lease, nus offered him for the ‘Fifield’ expressions the witnesses. demeanor and which did not mature into a firm forget when we examine We must not which pay Norton must Madrid. transcript of testimo- the cold words of the ny, we do not have the benefit of how $4,033.50, “13. pay Norton must judge sees hears the witness —the paid amount a check issued voice, pitch changes, the move- facial personal Madrid’s pur- account for the may tell a ment in the witness —all of pose of acquiring the Jenkins lease. separate credence. The story, given to be “14. Defendant has withdrawn his is with preponderates conclusion of what Counterclaim in this case. Brown, Wyo.1965, the trier of fact. Koch v. Judgment shall be ordered in con- Credibility is 401 P.2d 459.2 of witnesses formity with these Findings of Fact and Robinson, the trial court. Hench v. Law, Conclusions entry and with the 417; Eblen v. Wyo. 291 P.2d judgment, such all accounting between the Eblen, 1951, 434. Wyo. 234 P.2d parties will have been made and be final.” Appellate try courts cannot a case de novo. dependent Goodall, This F.2d case is v. 10th upon the Marken Cir. view we take of the facts found Paulson, meditated, Bogle may unwitting.

2. As said in care- voice fully thought-out A 185 Or. answer, though 201 P.2d 733: even “ * * * perfectly wit- with the rest of the dovetails Many times the countenance of convincing testimony, may be less ness’s the witness and the tale it tells are a more testimony readily given de- and without than lay by reliable index to the truth than the witness’s always tongue. tongue subject another whose answers do not to the wit- volition, manner, ness’s gestures, accord.” studied but his his passions his the tone of *10 1118 Miller, 1954, 552, Kincaid v. 129 272 only were four witnesses: Colo. There 276; Smitherman, Cir. defendant, Kaye P.2d v. 10th

plaintiff, Father Terence 1955, Nor disa 225 F.2d 583. is there Margaret (by depo- McGovern and Sullivan adventures, greement joint commonly only). sition The witnesses only latter two ventures, joint governed to as referred are as testified to the execution of the Sullivan- partnership. of True Hi- law v. McGovern-Woods defendant Inc., Machinery, Wyo.1978, Plains Elevator royalty pay- and the that substantial 991, The principal 577 P.2d 996. distinction received, ments were as the result of joint partnership between a and a venture producing plaintiff well.3 The and de- joint is that a to a usually venture relates pitted against were fendant each other with single P v. transaction. and M Cattle Co. an oral terminating Holler, 1019, Wyo.1977, P.2d 559 1021. joint last venture. There were no great importance We do it of not consider pieced together memoranda that could be parties appeal whether to this agreement. into a written There were no joint engaged single in a venture or a series witnesses to their on January discussions joint ventures, of on each the heels of 13, (that according date to the de- 1975— event, purpose other. In fendant; 1975, 15, according to the It buy combination and sell leases. was to plaintiff). The trial held over three appears carried on in three to have been years later, when memories must have The phases, by the trial as found court. somewhat dimmed. This combination can findings of conclusions of law facts and present task for formidable a trial regard fully supported by are the testi- judge. agree We pertinent the most mony urgent questions The exhibits. issues are those outlined the defendant. revolve around the termination of their joint the absence of a written venture (or joint ventures). venture agreement, this entirely case became one question There is no but that the defend- dependent upon findings of the judge, acquired question ant the leases in facts developed prove disprove or plaintiff following and the ero- parted an agreement. an oral combination, sion of their on account appellant length sets out duty at plaintiff’s dissatisfaction with the defend- venturers to observe the utmost ant’s secretary complaints and defendant’s good faith in fiduciary relationship be- handling money. over We Madrid’s tween them. Wyoming-Indiana Oil and carefully the versions examined Weston, v. 1932, 526, Gas Co. Wyo. 43 7 P.2d both out con- and set in detail their 206, 1037; 80 Guiberson, A.L.R. Fried v. flicting testimony. 30 Wyo. 217 P. 1087. The de- plaintiff The “ relies on his own statement: does dispute fendant the requirements ahead, go ‘If up we on let’s finish what of that relationship of trust and confidence on, we working are what we’ve devel- and square-dealing, nor do we. oped, day anything but from forward developed by new me you that is either There is question no but that until striekly property can sole of that be the terminated, ven- individual.’ turer cannot exclude his co-adventurer an from interest property by acquiring it

on his own account while the venture is day anything “From that forward as to ongoing; and does, if he he must account. new develop my that I own could Hunter, v. Martin 179 Kan. anything develop new he could P.2d 153. McCartney See also own, McKen separate that we would our drick, 1956, 164; 226 Miss. ways.” So.2d roy- equal Marga- paid share of the landowner’s amount would have been 40% 14% alty $4,000 Sullivan, per nets receiving Father McGovern about ret Woods Father 20% paid by month. His share of the bonus defend- or half the amount of the other two owners. $8,000.00. ant came to about That means an

1H9 hand, plaintiff. the other the defendant’s ver- contract sued on rests on the On sion was that: Negros-Philippine Black & Yates v. Lumber Co., 1924, Wyo. 231 P. 37 A.L.R. any relationship

“We terminated we had *11 * * * plain The same burden rests on the buying in there in but at rate, prove whichever date it was we terminat- tiff to its terms. 17A C.J.S. Con any relationship joint-venture agreement ed tracts A anything we had on 579b. § eminently conduct, that we didn’t feel was may surrounding be inferred from [sic] forthcoming.” circumstances and transactions between

parties. Elevator Ma True v. Hi-Plains Inc., chinery, supra. The “termination” well, Ed, says, “A. He [Norton-De- joint agreement part became a of the total working things we are on some fendant] parties, venture of the which if talk let’s about those and see what form, would written dissolution because, got going, we have says, he I joint pertaining clause. The law adven intend to lease in the same area which applied provisions then only tures to not its we have been involved in before. IAnd ongoing, part while also but to that said, fine, same, said, I will do the agreement dealing with its dissolution. you what got going in here —I can’t words, recall exact the intent proof The burden as to a me, both with him and with since we joint particular fact in a suit between ad talking leasing immediately about venturers, party rests on the who affirma forward, in the same area from that date tively alleges or claims existence of was, know, you things what do we have 12h. fact. 48 Joint Adventures § C.J.S. working that we are on that look emmi- always question It is to be deter nent to us that we are in. involved [sic] evidence, joint whether a mined from the “Q. you And what talk Corp. v. venture exists. Producers Finance about? Lee, 1942, 326, 191 Okl. 129 P.2d 850. “A. I told him that I had been work- lease, ing on the Boner and I had been proving ven burden working Waring on the I am existence, party asserting ture is on the its brought up sure whether he Colo.App.1975, Corp., Fulenwider v. Writer Reeder lease or Frankly, whether I did. 408; of Twin 544 P.2d First National Bank that, I’m not sure on and Mr. Madrid has Sant, 1973, 376, 506 Bridges v. 161 Mont. testified that he wasn’t either. 835; Vincent, Inc. v. Russell’s P.2d Dean “Q. Are those three leases he Inc., 1974, Realty, 268 521 P.2d Or. discussed? 576; System, Digest 71 A.L.R.3d West’s Yes, “A. sir. Adventures, a rela Joint Whether “Q. right, All you didn’t discuss tionship venturers exists between others? parties primarily question of fact for is No, “A. (Bracketed sir.” material from the facts the trial court to determine added.) therefrom. and the inferences be drawn Williams, 1952, 276, 240 v. 72 Idaho Stearns in, A venture sounds and is P.2d 833. an oil lease upon, Eblen, founded contract. Eblen v. case, accounting even if it is conceded that

supra; Soto, 1959, West v. 85 Ariz. 153; plausible, theory of one of the is Campagna P.2d Ry. v. Market Street Co., against par 304, 149 281; when the trial court finds 24 Cal.2d P.2d Tran Equipment ty, sit it is a law that if the case is tried Dyonisio, Co. rule of v. 478; jury, and if Taquena Colo. 391 P.2d before the court without a v. Bob Co., Okl.1973, 539; rationally Vale Painting different conclusions can be 507 P.2d Joseph Co., evidence, v. Donover then the case is 9th Cir. 261 drawn from the 812; Digest System, F.2d West’s Joint Ad one for the trial court’s determination. ventures, Williams, proof supra. The burden of of a for the Stearns Counsel losing party prone to overlook nothing There was imminent about judge, advantage us, who has an over plaintiff Sullivan lease when and defendant may properly altogether take an different separate ways. decided The last view of the testimony than does counsel. contacts had been made in October and Eblen, Eblen v. supra. November, early period 1974. For a in No- December, vember and the defendant was simply

This is a case where the trial judge area, having more satisfied with not even in gone the evidence to Denver of the defendant than that plaintiff, to tend to his own land office which was both toas the contract terms and its termi July previous established the done some nothing nation. We find to reflect that the traveling. vacation had told Sullivans findings of the trial court were inconsistent defendant not even talk about *12 evidence, with the contrary great to the lease until the Macken Estate was closed. weight evidence, of the clearly or erroneous. He did not know that the Macken Estate The evidence is clear that at the date of lands, was closed and that which were only termination three leases were dis by covered a lease to Woods Petroleum Reeder, Waring Boner and un cussed— —as Company, had been set over to Mrs. Sulli- finished business of the venture. No van and the way other devisees until on his discussed, others were thereafter although mid-January back to Denver from the ter- they subsequently did get together to settle meeting plaintiff. mination with Even up their plaintiff accounts. The made no then he could not deal with the Sullivans demand on the defendant to because outstanding of the to lease Woods any other lease until he filed the action here Petroleum. According deposition appeal.4 It was not until the Macken Sullivan, Mrs. began when defendant Estate by devised the Macken Will to seriously negotiate Margaret with Joe and Mrs. Sullivan and the priests, two Catholic 5 productive became January 29, 1975, on or about plaintiff they Sullivan concluded ought to have an interest in it. Justice would not ahead until Wood Petroleum Potter had some observations about those finally refused to meet the defendant’s who come in after oil is discovered. Courts price per plus net acre a $55.00 14% look with disfavor the claims of those royalty landowner’s rather than the usual who awaiting lie idle the results of develop 12½%. ment. waiting may years, months, There were other features of the Sullivan days, or depending on the circumstances. lease which could it a label new transaction. ( There injustice is an inherent pur in one When defendant’s initial offer of an $25.00 portedly holding right to assert an owner acre October, 1974, was made in he was ship in property to voluntarily await only interested in one section of land. To propitious decide, event and then when the oilman, an there were unattractive danger features which has been at the risk of anoth over, er is about the other two sections of land come in and in that claim a share of profits. Rocky Merrill v. by dry Mountain Cat offset hole and there Co., 1919, tle Wyo. 181 P. 964. dry was a hole on the land itself. He complaint 4. The any event, in please this case was filed on March “In be advised that this 1, 1976, plaintiff 1976. On March wrote the offer will extend until March offering you defendant pation partici- please acknowledge your a letter accept- him a Would 50% rejection proposal by in accept- or Reeder lease and ance then of this stated: “ rejection proposal by * signing * * ance of this appreciate your reviewing I returning copy one of this letter.” your possibility files to determine if the same reply. Defendant did not you exists might relative to leases which acquired reciprocal arrange- and that a completed 5. The well Sullivan lease was ment would be in order September virtue of the on completion November, 1975, 1975. Plaintiff learned of its original agreement which existed through between us. in the No- occur, If this get situation Information, did then we should vember 1975 issue of Petroleum together for publication a determination and reports distribution of a firm that such mat- proceeds of net and interests to each of us. ters.

H21 required all not receive that amount in the settlement. finally was to take three sec- We, therefore, is no conclude that there tions. a credit of merit defendant’s claim of dispute principal involves $4,033.50. The other in the Sullivan lease.6 leases hand, judge appar- On the other plaintiff appear an interest claims ently plaintiff’s admission overlooked particular impression have no value. The is testimony is pleadings and that defendant are left included effect entitled to a credit $721.20. appearance plain add an of substance to claim, although tiff’s could at the district except Affirmed remanded to time become some marketable. judg- court with directions amend plaintiff by ment in reduction favor of recovery by joint can be There no ven- of $721.20. amount thereof sum property acquired turer the other completely has been ROSE, Justice, dissenting part event, fiduciary terminated. concurring part, with McCLIN- whom relationship no and an longer acquisi exists TOCK, Justice, joins. tion after termination outside the scope Foley venture. v. Phil ground I will on the that Norton dissent lips, P.2d Kan. 975. The satisfactorily carry his burden *13 plaintiff was on to show he burden the that proving liquidation agreement the oral —as joint relationship a venture which enti obligation it was his to do. fiduciary tled him to the a rela fruits of to applicable is Partnership generally law tionship theory joint the of venture. Holler, joint v. ventures. P & M Cattle Co. 1963, Scott, Opco, Inc. v. 10th Cir. 321 F.2d Wyo., 559 P.2d 1019. successfully 471. Plaintiff has failed to the with which The definition of terms carry proof his burden of because the leases as properly we are are stated concerned question were, by in as found the follows: judge, joint agreement. the outside “ designates . . . ‘Dissolution’ With to cross-appeal, defendant’s to point partners time when the cease in judge we conclude that the trial considered ‘termina- carry together, on the business $4,033.50 the defendant’s claim of credit when all the point tion’ the time is disputed perhaps a Though item. weak- up; and are partnership affairs wound ly arguable plaintiff from the record that is (often up’ ‘liquidation’) ‘winding called previously for that received credit amount settling partnership affairs process the of November, in the 1975 settlement of Am.Jur.2d, Part- 60 dissolution.” parties, accounts between the records 171, p. 91. nership, at § by referred to defendant are not as clear in Law of Bromberg, & It is said in Crane $4,033.50 regard as The claimed. does HB, p. 489: Partnership, § defendant, A, by prepared show on Exhibit dissolution, con- a partnership “After plaintiff as a credit deducted de- from a there is liquidated. Unless tinues until However, expenses. fendant’s we can see it business, the re- right to continue B, nowhere reflected on Exhibit which fi- duty right and maining partners have the nally formed the basis settlement of Fidu- liquidate firm. up to wind November, us, accounts in 1975. To Exhib- period.” ciary persist during this duties it A reflects an admission defendant $4,033.50; case, mid- plaintiff is oral of entitled to In this dis- plaintiff January, partnership Exhibit B tends to show that Sullivan, royalty pay- paid poration 1975. The Defendant on March McGovern . pendens up per lis $55.00 Woods a bonus held because of of acre and resold at ments have been per by plaintiff $75.00 a bonus of has a division acre for 400 acres notice filed but he net overriding royalty an retained of order. when 5% assigned lease Woods Petroleum Cor- 1122 liquidated. quired it It to establish the affirmative de-

solved but was not then is winding up part- joint a liquidation or of the fense of an of ad- abandonment ” concerned, nership are McCartney with which we here . venture. . . “winding McKendrick, up” and the was to be effected 116 Miss. 85 So.2d according to the of the (1956). intent as gleaned expressions, from their actions standard of These cases state correct by operation of law. necessary establish termination of proof of proof nature the burden of re- joint relationship A fiduciary adventure. quired winding up to effect an oral of a until among exists adventurers scantily adventure is dealt liquidation. In the interests moment Certainly, law. who burden with him among partners dealings promoting honest asserts the terms and conditions creating is nec- the sort trust which liquidated. the adventure will be is said It essary progress complex economic Papierz, in Hurst v. Ill.App.2d 262 society, imposes the law of duties number (1970): N.E.2d governing the of fiduciar- and rules conduct “Ordinarily, in an action between only proscribe These ma- activity ies.

adventurers, proof to a se, burden proscribe activity also lum but certain fact party rests on the who af- wrongful or activity conducive firmatively alleges claims ex- wrongful appearance activity. For ex- n > ists, in respect true such only enjoined ample, trustee is not from as the matters existence of a money adven- stealing the benefi- trust’s ture, venture, the termination of the enjoined placing ciary, he is also money beneficiary’s with his own in a account, common bank even if he intends to question, however, becomes more acute keep scrupulous account of how much be- when we are assigned inquiring the task of longs each. into factual must circumstances which *14 present be say before will courts be able to Similarly, necessary, it is in order to avoid that the proof burden of has been dis- appearance among or the of fraud fraud charged. Is it party sufficient that the clear, partners, unequivo- that a burden of asserting the liquidation agree- terms of the joint proof imposed cal and decisive be charged ment satisfying be with the ordi- an enti- adventurer who claims nary proof which, though burden of even of tling exploitation him to exclusive a busi- weight of the evidence almost bal- opportunity he as a ness has come anced, permit a fact-finder to reach joint fruit venture. the conclusion that termination has been mid-January Norton testified that he effected? Or is the burden heavier than with that met Madrid to discuss friction had that? developed the two them and between One court has commented the sub- that Madrid offered to “terminate ar- ject of abandoning adventure: now,” rangement right whereupon we have “Abandonment is a [of venture] agreed. Except particular Norton for three voluntary thing, there must be a identified, leases which they each is clear clear, unequivocal decisive act point that this is the in time when dissolu- party to constitute in re abandonment place. tion of their This association took spect right (Citations). of a secured. that conversation reveals each adven- ” . Norman, . McIver v. Or. contemplated pursuing turer new leases for (1949). 213 P.2d [Bracketed County, his own account in the Converse parenthetical matter supplied] area, including Wyoming, the other without

Another court has said: During in such future endeavors. this con- “ . . opinion, agreed .In continue partners our there is no versation the to ‘clear, unequivocal and decisive with to three respect evidence’ their record, contained in leases, this such as is re- lease was named Sullivan

H23 agreement.) breath, not the three re nation In the same one of mentioned. With however, spect remaining part business that Norton concedes Madrid was asking him liquidation agreement gets concerning any for information nership, possibilities partner- pretty fuzzy, with which the terms which are far ship “clear, then unequivocal from involved and and decisive.” Norman, imminent. McI Norton also testified that he ver v. supra; McKendrick, didn’t think there was much left be said McCartney supra. v. they three named discussed the leases. says that Norton intention was to Arguably, means that Norton didn’t this partnership respect terminate the and, consider the lease imminent Sullivan everything that wasn’t imminent. this therefore, did disclose Madrid regard, part Norton’s of the dialogue at the pertinent information with to it. trial went like this: question “yes” Norton answers to a also well, says, Ed, “A He we are [Madrid] Madrid’s counsel to effect working things on some and let’s talk ways separate rela- about got those and see what we have tive anything except the three named because, going, says, he I intend to lease But, course, leases. this answer has to in the same area in which we have been in the context that Norton considered said, fine, involved before. And I I had told three Madrid that discussed same, said, will do the and he what have leases, one was working of which Madrid you got going —I in here can’t recall on, only pieces were the of business that words, exact the intent but both with him were imminent. me, and with we were talking since about two named is—were question But the leasing immediately in the same area imminent business only pieces of leases the forward, was, know, from that date you which, Norton partnership, during things what we have do we are says, in the area? pursuing been working look emminent to us [sic] (in prove this were, has to yes that we are in.” [Emphasis involved “clear, unequivocal and my judgment) bracketed supplied] matter is es because evidence decisive” interprets the conversation as fol- parties’ contention sential lows: terms of the concerning the had met minds ‘Q: Okay, you “A advise him that v. McCartney arrangements. liquidation you intended to lease for your own Norman, McIver McKendrick, supra; and account in the Powder River Basin after supra. that? “ a number sets out majority opinion *15 day ‘A: From that forward as to that the Sulli- the conclusion of reasons for anything new that I develop my could on in mid-Janu- not imminent van lease was anything own and new that he de- could January 29 signed was ary, though even own, velop on his go that we our would ” begun lease had negotiations for the separate (Redirect ways.’ examination backdrop a Against previous the October. reading Mr. Brown —Madrid from Ma- deci- clear, unequivocal and requires drid deposition). agreement of oral the sive evidence that me, For significant it is that ad- Norton exclude the to mid-January was intended mits sought that Madrid the information fairly which could those lease from Sullivan (which logically was within Norton’s knowl- sup- imminent, not find I do be considered edge) to what partnership that majority’s statement port for the business Norton had been developing in the area question. nothing in imminent about The record was shows that “[t]here plaintiff when de- responded just Norton Sullivan that he had two leas- es, way. fendant each own which did not decided include Sullivan lease. (Madrid The last had been made in Octo- contacts working had been on the third ” ber, . early 1974 and November. . lease specifically excluded termi- from the 1,1974, got from the time in when he On when adven- first October October effect, eventually in Joe examining ture touch with Sullivan and was in Norton was County obtained the lease. records in the Converse Courthouse concerning upon by lands in the area offers deposition, In her Mrs. Sullivan Madrid and Norton. located a half Norton explanation of the there is no fact that section of in this land area which was leased correspondence between record of written Company, Woods Petroleum and he made during period her husband and Norton reflecting notations on a lease card that the through January from October Macken, mineral-interest-owner was Cecelia 1975: widow, who owned 100% of minerals. “So, corre- since there was no further The expiration date of the Woods Petrole- spondence, apparently, this would um Company lease was he probably during that time mean [Nor- 14, 1974, quite On I staying Douglas was in lot. October Norton wrote to ton] him Joseph know was there with he told Douglas, Wyoming, in his wife Sullivan stat- me, part the time.” ing that attempting he to contact a Macken, widow, Mrs. Cecelia with refer- testimony following The Norton bears on ence possible gas to a oil on her this matter: lands in County. request- Converse Norton “Q. kept with Mrs. You had in touch ed advice toas her current address. On through period Sullivan replied October Mr. Sullivan that late until the time October informing Norton him Mrs. that Macken executed, you lease was had not? passed away 6, 1974, July and that during “A. I saw them several times wife, Sullivan, Mr. Margaret Sullivan’s E. period, yes, sir. was the Executrix of the will and one of “Q. you stopped Is it a the devisees under the will. The other dev- you every called on them time were isees of the mineral interest Father Douglas? in Colm Woods and Father Terence McGovern. that, “A. swear but it’s I couldn’t 18, 1974, On October wrote Mr. Sul- did, quite yes, possible that I sir.” livan stating that he was interested in leas- in mid-Janu- Perhaps it can said that ing acreage gas for oil ary obtaining lease whs Sullivan willing pay per $25 net acre for a five- certain, disputed that, not it cannot be but year lease. Norton wrote was in mid-January, negotiations Douglas quite suggested often and lease were win or loose Sullivan they discuss the matter further at the Sulli- very imminent. vans’ convenience. parties, clear that record is Norton noted on his lease card that on mid-January meeting, contemplated 8, 1974, November he transmitted a lease meetings up further to wind the affairs of offering per net acre. $25 Sullivans subsequent partnership business and accept those But terms. if the fact, held, was, part- meeting other advantageous them, terms were in- nership County area leasing Converse dicated they would be leasing interested in was not discussed. to Norton. dissent, perfectly am coming to this I While negotiating Norton was with the of all *16 application comfortable with the Sullivans, there was competition from appropriate appellate practice hav- rules Woods Petroleum Company, who was the ing judge the trier-of- being to do with holder of the underlying lease. Woods Pe- evidence its inferences and the and troleum Company higher had made a offer par- favor viewed in of the successful than Norton’s offer. change ty. guidelines These do not may Norton concedes that he have visited the court say substantive that rules every Sullivans Douglas time he was in substantial must base its decision such because he was obtaining judgment. interested in sustain evidence as will be, lease. pursued negotiations under the liquidation his evidence of must

H25 courts proof rules cited from various “clear,

above, unequivocal and decisive.” that

Norton conceded he and partners to continue all light that were imminent. above, taking into facts referred to and con- partnership

account the fact liquidation, during time

tinued until part- fiduciary relationship between the

ners fail to can continued —I see how courts required standard of

conclude

proof prove is met when who must liquidation agreement

conclusiveness represent liquidation

can the terms of the “clear, unequivo- more to be no partners

cal than and decisive” except liquidate everything

would as to me, imminent. which is For this does proof. the standard of meet

I court reversed the trial

insofar as it ordered and that Ma- decreed

drid nothing by Complaint “take herein

filed, insofar as he claims an interest in the

oil gas leases com- described” in his

plaint.

I agree majority opinion with the insofar

as it money judg- directs amendment

ment in against favor of Madrid and Nor-

ton. Bagley & Horiskey, Hickey, of J. Paul BURKE, Appellant L. Howard appellant. Cheyenne, for Hickey, (Plaintiff below), Trautwein, J. Blair Speight B. Jack Kunz, Cheyenne, & Speight Hathaway, A.

WYOMING BANCORPORATION appellees. H. Trautwein, Appellees (Defendants below). McCLINTOCK, RAPER, J.,C. Before GUTHRIE, No. 5102. JJ., ROSE, THOMAS J., Retired.* Supreme Wyoming. Court of June 1979. ROSE, Justice. is whether appeal issue correct jury, without who sat

judge, 5-l-106(f), Constitution, * Wyoming Section par- ROONEY, J., having recused himself Retired, W.S.1977, by GUTHRIE, J., entered on case, order of this court ticipation in this having assigned, in active retained been *17 pursuant judicial Article Section service