Judge, &C. v. Braswell, &C.

• Decision Date: 27 March 1877
• Citation: 76 Ky. 67
• Parties: Judge, &c. v. Braswell, &c.
• Court: Kentucky Court of Appeals

76 Ky. 67

Judge, &c. v. Braswell, &c.

Court of Appeals of Kentucky.

March 27, 1877.

APPEAL FROM LYON CIRCUIT COURT.

MUIR, BIJUR & DAVIE AND A. DUVALL FOR APPELLANTS.

EDWARDS & SEYMOUR ON SAME SIDE.

L. D. HUSBANDS FOR APPELLEES.

A. J. JAMES ON SAME SIDE.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

February 12, 1873, J. D. Morris, E. C. Machen, R. E. Cross, N. B. Peck, and Philip Judge entered into a written agreement, wherein it was recited that Morris & Machen had, by leases from the owners thereof, secured the right to enter upon divers tracts of land situated in Lyon County, for the purpose of prospecting for and mining iron ore and other minerals, and that there was much other land in the same county which could be leased upon similar terms. The writing then proceeds:

"Said Morris & Machen, R. E. Cross, N. B. Peck, and Philip Judge have and do hereby form a co-partnership, under the firm-name of Morris, Machen & Co., for the purpose of engaging in said mining business upon said lands, or upon any other lands which they may procure for that purpose. Said business to include the getting out of iron ore or other mineral substances and coal from any lands aforesaid, or which said firm may secure, and the right to develop same and sell the ore and coal, etc., or to sell the rights, privileges, or leases aforesaid, or any lands the title to which said firm may secure.

"Said Morris & Machen agree to put all of their rights, title, claim, or privileges which they have in, of, or to any of said lands into said firm of Morris, Machen & Co., and to secure to said firm all the right, title, and interest or claim they have in or to the same, or which they may acquire, by proper deed or deeds of conveyance duly executed, acknowledged, and delivered to said firm. Each of said partners agrees to share equally in all the profits or losses of said enterprise. Said partnership to continue during the will of the partners; and said Cross, Peck, and Judge agree to put into said firm a sum of money, as so much capital advanced by them to said firm, for the purpose of building side-tracks from said E. & P. Railroad to the said mining lands, and so much as may be necessary, not exceeding $3,000. Said Morris and Machen have actually expended $680 in said enterprise to secure their rights aforesaid, and they shall each be entitled to a credit of $340, as so much capital advanced to said firm; said sum so expended by them having been spent for the benefit of said enterprise, and said enterprise is to embrace the purchase of the title to any coal or mining lands in fee, and the leasing of same, as said firm may determine; but no debt shall be contracted by said firm, or by any member thereof, on account of said firm without the consent of said partners; and if said Morris & Machen, or any one of said partners, or either of them, shall lease or purchase any mining or coal lands on or near said railroad, he or they shall convey the same to said firm at cost price, if said firm so elect."

March 29, 1873, E. C. Machen purchased, in the name of Morris, Machen & Co., a tract of two hundred acres of land of the appellees, H. L. Machen and N. T. Braswell, at the price of $6,000, and a tract of two hundred acres of N. T. Braswell at the price of $2,000, and accepted deeds therefor, which on the 31st of March were lodged in the clerk's office of the Lyon County Court for record.

April 23d E. C. Machen drew, in the name of Morris, Machen & Co., upon Philip Judge, in favor of Machen & Braswell, for $6,000, and in favor of Braswell for $2,000, in payment for the land. Judge refused to accept or pay the bills, and these suits were brought thereon against Morris, Machen & Co. Cross, Peck, and Judge denied the right of E. C. Machen to purchase lands for the firm; averred that they had not been consulted, and had not consented to either of the purchases; that such purchases were frauds upon them, and had been made pursuant to a fraudulent conspiracy between E. C. Machen and H. L. Machen and Braswell; pleaded non est factum to the bills, and renounced any and all claim to the lands. They also set up the article of partnership, and alleged that at the time of making the sales both H. L. Machen and Braswell knew that E. C. Machen had no authority to make the purchases.

By consent of the parties the suits were transferred to equity and consolidated, and on final hearing judgments were rendered for the plaintiffs, and from those judgments Cross, Peck, and Judge prosecute this appeal.

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