Bash v. Culver Gold-Mining Co.

• Decision Date: 05 August 1893
• Citation: 34 P. 462,7 Wash. 122
• Parties: BASH v. CULVER GOLD-MIN. CO. [1]
• Court: Washington Supreme Court

34 P. 462

7 Wash. 122

BASH v. CULVER GOLD-MIN. CO. ^[1]

Supreme Court of Washington

August 5, 1893

Appeal from superior court, King county; T. J. Humes, Judge.

Action by Henry Bash against the Culver Gold-Mining Company. From a judgment for plaintiff, defendant appeals. Reversed.

Dunbar C.J., dissenting.

Andrew F. Burleigh, for appellant.

Metcalfe Little & Jurey, for respondent.

STILES J.

This was purely an action at law, and therefore respondent's objections to the record are untenable. The referee filed his report, and after hearing, upon exceptions, the court rendered judgment as recommended in the report. Notice was given by appellant of the filing of a statement of facts, but no statement was actually filed, all that was done being the annexation to the referee's report of the testimony, of a certificate ready for the signature of the judge, such as it was usual to attach to a statement of facts. Respondent moves to strike. Healy v. Seward, (Wash.) 31 P. 874 would cover this case were it not that this testimony was not in the shape of depositions, but was a stenographer's longhand notes. But we do not think these notes should be stricken, although they do not constitute a statement. The statute (Code Proc.§ 387) requires referees to file with their reports the evidence received upon the trial, which thereupon becomes a part of the record in the case, proper to be sent to this court, without any statement at all, in an action at law, since the object of a statement in a law action is only to bring up matters not already a part of the record. The motion is therefore denied.

The complaint alleged that the defendant became a corporation August 4, 1891, and set forth facts tending to show, in the first cause of action, that in January or February, 1892 plaintiff and others had sold and conveyed to it a mining claim, mill site, mill, etc., the consideration for which to the plaintiff was its agreement to pay him the money he had expended in the purchase of the mine, etc., and all his outlay in connection with it, which he summed up at $10,817.90. The second cause of action was for $7,662.80, alleged to have been advanced and paid by plaintiff for purchase of the mine and machinery, and for mining work between August 4, 1891, the date of the incorporation, and the close of that year, for the use of, and at the request of, the proper officers of the company, and which it promised to repay. At the trial, however, without any amendment of the complaint, there was a great change of base as to the incorporation, it being sought most strenuously to establish that the corporation existed de facto at all times after February 11, 1891, and that all of the money was paid out in the same manner as was alleged in the second cause of action as to the lesser part of it.

Now the facts were as follows: One J. L. Warner was a mining expert, and about January, 1891, he and one Springer had procured from one Donohue an eight months' option bond upon the Culver mining claim, in Peshastin district, Kittitas county, for a consideration of $15,000, to be paid in the future. Springer was owner of a third interest in the bond, and Warner, for himself and one Getchell, who was his financial backer, owned the other two-thirds. The claim was in litigation waged against Donohue, and Getchell had advanced money for the expenses of the suit. Warner and his brother E. H. Warner had an understanding by which they were jointly interested in whatever the former did in a mining way. Without, as far as we can see from the record, any unfair contrivance upon the part of the Warners, respondent and his son G. B. Bash and his son-in-law B. M. Long became desirous of having an interest in the mine, and, as Getchell was tired of paying the costs of Donohue's litigation, it fell out that there was a preliminary arrangement between the Warners, Bashes, and Long looking to the joint acquisition of the whole property and its development. Neither Warner nor Springer had money, but were expecting, if Getchell failed them, to enlist some other capitalist in the enterprise. Springer demanded $2,500 for a release of his third interest in the bond, and some $600 advances made by Getchell had to be repaid to him. Donohue was satisfied to take $13,000 for the mine,-$1,000 cash, and the balance in payments. Respondent, his son, and Long undertook to pay for the mine, for the erection of suitable machinery to work the ores, to cost not exceeding $8,000, and for the cost of some development; and they were to have half the mine, and the Warners the other half. The Warners were not to have any interest in the mill until they paid for half of it. Something was understood about repaying the money, or part of the money, thus to be expended, of which more later. January 15, 1891, Springer and Getchell were satisfied; J. L. Warner surrendered the bond to Donohue; and respondent received a deed from Donohue for the property, giving in return therefor $1,000, and a contract covering future payments of the purchase price. This deed ran to Henry L. Bash alone, as it appeared likely that he would be the one on his side of the transaction who would furnish all the money. The next day respondent conveyed to E. H. Warner, for himself and brother, a half interest in the claim, and at the same time a written agreement was made in which the Bashes and Long were parties of the first part, and E. H. Warner was party of the second part, as follows: "Whereas, for and in consideration of one dollar to us in hand paid, and other valuable considerations, the parties of the first part agree to advance the money necessary for the purchase of the mine, and for the purchase, erection, and operation of the machinery necessary for treatment of the ore from the Culver mine, with such money as may be necessary for the mining operations of said mine, provided such amount does not exceed eight thousand dollars for said machinery, the party of the second part agrees to supervise the purchase and erection of necessary machinery with such other supervision as may be necessary to the successful operation of mine and mill. The parties of the first part agree to execute a valid deed to an undivided one-half interest in the Culver mine alone to said party of the second part, when called upon, and to an undivided one-half interest in said machinery when paid for by party of second part. It is further agreed that two-thirds of whatever net profits may accrue to the interest held by the party of the second part shall be set aside for the benefit of the parties of the first part, until one-half of the amount of money advanced by said parties of the first part shall have been returned to them." At some time in this early stage of the transaction there was talk, among the parties to it, of the matter of forming a corporation which should take the title to the mining claim, and carry on all the subsequent mining operations, including the acquisition of a mill and other necessary property, and that talk culminated in an agreement to incorporate; so that articles of incorporation were executed February 11, 1891, and later by-laws were drafted, and it was understood who the officers were to be. But there was other litigation against the property, and it was deemed best not to file the articles for the present, and they were not filed until August 4th. In the mean time J. L. Warner set two men at work at the mine, on February 16th, without any particular authority from any one, as he had a perfect right...