Bentley v. Brossard

• Decision Date: 06 March 1908
• Docket Number: 1851
• Citation: 94 P. 736,33 Utah 396
• Court: Utah Supreme Court
• Parties: BENTLEY v. BROSSARD et al

94 P. 736

33 Utah 396

BENTLEY v. BROSSARD et al

No. 1851

Supreme Court of Utah

March 6, 1908

APPEAL from District Court, Cache County; J. H. Howell, Presiding Judge.

Action by W. H. Bentley against A. Brossard and others. From a judgment for a part of defendants, plaintiff appeals.

REVERSED AND REMANDED FOR A NEW TRIAL.

Booth Lee & Badger for appellant.

Nebeker Hart & Nebeker for respondents.

STRAUP J. FRICK, J., concurring. McCARTY, C. J., dissenting.

OPINION

STRAUP, J.

This action was brought to recover the sum of $ 212 alleged to be due plaintiff from the defendants for labor performed on certain mining claims operated by the defendants. It is alleged in the complaint that the defendants entered into a contract in writing whereby they associated themselves together as copartners for the purpose of developing, improving and operating certain mining claims, naming them, known as the "Wakefield Group of Mines," situate near Tuscarora, Nevada, and for the purpose of extracting ore therefrom; that the defendants entered upon the work of developing and operating the properties and in carrying on mining operations thereon under their contract of partnership; that the plaintiff was employed by the defendants as an engineer to work upon the properties, and that in the course of his employment he performed labor thereon between the 1st day of August and the 23d day of September, 1903, at the agreed price of $ 4 per day; that there was due him and owing from the defendants and each of them the sum of $ 212. The defendants A. F. and O. A. Caldwell were not served with process, and no appearance was made by them. The other defendants answered, pleading the general issue. A trial was had before the court and a jury.

Some of the defendants reside at Logan, Utah, and the others in southern Idaho. The defendant Brossard, who had examined the group of mines, spoke to the other defendants about them. Thereupon Brossard, in October or November, went to Tuscarora, and there negotiated with L. Fannof, the owner of the group, for a lease, upon substantially the following terms: That Fannof was to deliver possession of the property to Brossard, who was to work and develop the claims in such manner as Brossard deemed proper; that Brossard was permitted to sell all the ores obtained from the mines while working them under the lease, and that the money received therefor should be disposed of as hereinafter stated; that Brossard should employ at least six men every twenty-four hours, and that three men should be kept at work on said mines each day, and three men each night; that the property should be worked in a workmanlike manner, etc., and that Fannof should not be responsible for the payment of the labor employed or material furnished, etc.; that all moneys derived from the sale of ores should be deposited with the First National Bank at Logan, and should be subject to the check or draft of Brossard, and that he should be permitted to use so much thereof as was necessary to pay all expenses, etc., and that all moneys derived from the sale of ores in excess of the expenses should be equally divided between Brossard and Fannof; that if the moneys derived from the sale of ores were not sufficient to pay for all the expenditures, etc., Brossard was required to pay them, and that Fannof was in no way to be held responsible therefor; that the moneys in excess of the expenses were to be kept and allowed to remain in the bank until the sum amounted to $ 20,000, when it was to be equally divided between them, in which event Fannof was required by a good and sufficient deed to convey to Brossard an undivided one-half interest in and to the group of mines; that Brossard also had the option at any time within the life of the contract to purchase an undivided one-half interest in and to the group for the sum of $ 10,000, and on the payment of which sum Fannof was also required to execute a conveyance to him of such undivided one-half interest; that the contract was to continue so long as the work was being performed under the terms of the contract, and until the conveyance of the one-half interest was made; that Brossard was given the right to abandon the work under the contract at any time; that if steam power should be used upon the property Fannof was to be employed as engineer at current wages; and that Brossard could not sublet or assign the contract without the consent of Fannof in writing. The contract contained other matters of minor importance not necessary here to mention. Shortly after the terms of this contract were agreed upon, but before the contract was signed, Brossard returned to Logan, and there exhibited a copy of the contract to the other defendants. Thereupon the defendants above named, in the early part of December, 1902, entered into the following contract:

"This agreement made and entered into at Logan City, Utah, between A. Brossard, the first party, and the other defendants above named, second parties, witnesseth: That whereas the first party has leased from L. Fannof of Tuscarora, Nevada, mining claims situated in the said Tuscarora mining district, state of Nevada [naming them]; and whereas it is deemed advisable and agreed by the parties hereto that the sum of $ 5,000 shall be furnished for the development of the said mining claims and the carrying out of the said contract when completed by the first party therein and the said L. Fannof for the development of the said mining claims and for earning and securing the option in said contract set forth: Now, therefore, it is hereby agreed by the parties hereto that they will respectively furnish amounts aggregating the sum of $ 5,000 in respective amounts as follows, to-wit, the said A. Brossard the sum of $ 1,000, the said Jacob West the sum of $ 1,000, the said R. A. Caldwell the sum of $ 1,000, the said A. F. Caldwell the sum of $ 1,000, the said J. M. Blair the sum of $ 500, the said Mattie B. Hanson the sum of $ 250, and the said Orin A. Caldwell the sum of $ 250. And it is agreed by the parties hereto that in pursuance of his contract with L. Fannof of the undivided one-half of the said mining claims as in said contract stipulated that the said first party will convey to the second parties hereto an undivided interest in the said mining claims in proportion to the amounts invested by the parties herein as above set forth, that is to say, to the said Jacob West the one-tenth undivided part of each and all of the said mining claims, to the said R. A. Caldwell the one-tenth of each and all of the said mining claims, to A. F. Caldwell the undivided one-tenth of each and all of the said mining claims, to the said J. M. Blair the undivided one-twentieth of each and all of the said mining claims, to the said Mattie B. Hanson an undivided one-fortieth in each and all of the said mining claims, and to Orin A. Caldwell an undivided one-fortieth in each and all of the said mining claims. And the said first party hereby agrees that if the said sum of $ 5,000, or any part thereof, should not be needed for the development work on the said mining claims for the reason that the moneys derived from sale of ores obtained from working said mining claims should pay the expense or part of the expense in developing said mining claims, that in any such event the first party will return to the second parties all such parts and proportions of the said sum of $ 5,000 remaining unused, or if used temporarily, then refunded or reimbursed from sale of ores, as the second parties shall be entitled to, pro rata, according to the amounts advanced and paid into this enterprise as herebefore set forth. And the first party hereby further agrees that according to the terms of said contract with L. Fannof any moneys that shall remain on hand to be divided between the said L. Fannof and the first party in accordance with their said contract that the said first party will pay to each of the second parties the proportion of all such moneys received by him as the said amount furnished by the second parties as aforesaid bears to the whole sum of $ 5,000, as aforesaid; that is to say, that each of the parties of this contract shall receive his pro rata share according to the part of the said moneys which shall be furnished by him in accordance with this contract of all moneys that may come to the said first party in pursuance of his said contract with L. Fannof."

At about the time of the making of the foregoing contract, and before the lease between Brossard and Fannof was actually signed, R. A. Caldwell, West, Blair, Hanson, and Brossard contributed $ 3,000. Brossard then departed for Nevada, and thereafter the lease was signed and executed on the 13th day of December, 1902. Brossard thereupon took possession of the properties and commenced work on the 15th day of December 1902, and with the moneys contributed and paid over to him he employed men, purchased supplies, etc., and commenced active operations. The work consisted in sinking shafts, running tunnels, and making cross-cuts in search of ores. In March, 1903, $ 2,000 more was contributed by the same parties and A. F. Caldwell. In May $ 2,500, and in June, 1903, an additional sum of $ 2,500, were contributed by the same parties and some others who had come into the association, making, in all, a total contribution of about $ 10,000. The record does not disclose the amount contributed by each, nor do we regard such fact material, in view of the issues presented by the pleadings and the questions involved in the case. The operation of the mines was continued until some time in September, 1903. All of the moneys contributed were used in paying men, in buying supplies, and in working and developing the mines. Brossard had charge of the work, and...