Bissell v. Foss

• Citation: 29 L.Ed. 126,114 U.S. 252,5 S.Ct. 851
• Parties: BISSELL v. Foss and others
• Decision Date: 06 April 1885
• Court: U.S. Supreme Court

114 U.S. 252

5 S.Ct. 851

29 L.Ed. 126

BISSELL v. Foss and others.

April 6, 1885.

John F. Dillon and L. C. Rockwell, for appellant.

D. P. Dyer, for appellees.

WOODS, J.

This was a suit in equity. The facts, as they appeared by the pleadings and evidence, were as follows:

In January, 1878, two miners, named Davidson and Van Boxall, located a mining claim near Leadville, Colorado, which they called the 'Winnemuck.' In March following they jointly conveyed to the appellant, Bissell, and to the appellees Foss and Hunter each a one-fourth interest in the property in consideration of their agreement to furnish money to sink a shaft to the ores on the claim. These parties worked the mine as mining partners until July, 1878, when Davidson and Van Boxall, with the consent of their associates, sold their one-fourth to three persons, Rawlings, Handley, and Robertson, called in the record 'The Missourians,' who with Bissell, Foss, and Hunter continued the working of the mine. Tabor and Reische, who owned and worked a mine adjoining the Winnemuck, on an alleged title not necessary to state, claimed the ore from the Winnemuck mine, and instituted, from time to time, attachment proceedings, by which they seized the ore as it was taken from the mine. The associates who were working the Winnemuck mine procured the release of the ore by giving forthcoming bonds, with one Halleck as security, who signed the bonds on condition that the money arising from the sale of the ore should be placed and kept in bank as an indemnity to him until the ownership of the ore could be settled. On this understanding the proceeds of the sale of the ore were deposited in the Miners's Exchange Bank of Leadville.

In August or September, 1878, the owners of the Winnemuck, Bissell, Foss, Hunter, and the Missourians, having received from the sale of ore money more than sufficient to indemnify Halleck, with the surplus bought and paid for an interest in the New Discovery lode. About October 1, 1878, they had on deposit to their credit in the bank $16,000, and Halleck was bound for them to the amount of $12,000. In the latter part of September the Missourians offered for sale their one-fourth interest in the mines. Bissell and Foss were anxious lest the interest of the Missourians should fall into the hands of Tabor and Reische, who might thereby gain some advantage in their suits then pending. They had a conversation in reference to the purchase of the interest of the Missourians. They differ in their account of this conversation. It is thus detailed by Bissell: 'Along about the thirtieth day of September, Mr. Foss came to my room and stated that the Missourians, as we termed them, were wanting to sell their quarter interest in the property, and had offered it for $30,000, and he said that he thought we had better go in and buy it. I said to him that it was all well enough to buy it, if they wanted to sell, but that I was confident that I could get it at better figures. I said, 'I am almost certain, Mr. Foss, that I can buy it for less; let me manage it and I think I can buy it for $15,000,' and went on to say what I would say to them concerning all the trouble and suits in the case. He said, 'Very well, if you can get it for that, so much the better.' It was an agreement and understanding between us that if we could get it for $15,000 we were to take it.' He further stated in reference to the same interview: 'We sat down there and made figures to see if we could pay for it out of the money belonging to the company in bank; and the result of our figuring was, that we couldn't do it to the full extent; that we could pay a portion of it from that money, and the balance outside, each of us to raise our share.' In answer to the question, who were to have the interests in the quarter to be purchased of the Missourians, he said: 'They were to go between us four, Trimble and Hunter, Foss and myself. Mr. Trimble's and Hunter's were interests together; they owned jointly that quarter interest, so I was informed by Mr. Trimble and Mr. Hunter.'

Foss gave the following account of his interviews with Bissell in reference to their project to buy out the Missourians: 'I met Dr. Bissell over Tribe & Jeffrey's store, in Leadville, and we talked the purchase over. I told him that the boys wanted to get out bad, and I thought they would sell pretty reasonable; but t at as I was working about there managing the mine, he could do better than I could. I said* he had mentioned to us one night on the street $30,000 as a price, but that we wouldn't agree to for a moment. We wondered how we could do about the money for the purchase. If we could use the company money, we thought we must use a little more than our joint interest. Bissell was to see the boys in regard to it.' In answer to the question, 'What was said about the price?' he replied: 'We talked the amount; $20,000 was spoken of. He thought that was too high and more than we should give. I thought so too, but $30,000 was the price fixed by them. That I wouldn't think of for a moment. We figured it over, but I don't remember the exact figures, and we concluded that at $15,000 we could pay for it, in case we could draw out the money in the Exchange Bank. Dr. Bissell thought it could be bought for less than $10,000. There was no proposition made for any definite price, but if we could buy the property we were to buy it together. He was to see what was the best he could do with it.' He was then asked to state 'whether there was, up to the time you concluded the trade with Handley, any agreement with Dr. Bissell that you and he should buy that property for $15,000;' to which he replied, 'No, sir.'

After these conversations between Bissell and Foss, Foss and Hunter, early in October, 1878, purchased of the Missourians for $15,000 their interest in the Winnemuck and New Discovery mines, and in the money of the associates on deposit in the Exchange Bank. The purchase was made in the name of Foss, but it was agreed between him and Hunter that Hunter was to have two-thirds and Foss one-third of the share. The money to pay for the share was all advanced by Hunter, Foss agreeing to reimburse Hunter the one-third. In order to induce the Missourians to sell at $15,000, Hunter declared to them that he was willing to sell his fourth to Foss for that sum, and actually made a pretended sale and conveyance to Foss at that price. Bissell was not informed of the negotiations for the sale and purchase while they were going on, and Foss requested Handley, the one of the Missourians with whom he treated for the purchase, not to tell Bissell of the sale. After the purchase was completed Foss denied the right of Bissell to a one-third share of the interest sold by the Missourians. Matters thus remained until November 16, 1878, when the Tabor party on one side, and Foss, Bissell and Hunter on the other, joined in a conveyance of their interests to B. M. Hughes, as trustee, to hold 73 out of 100 equal shares for the Tabor party, and 27 for Bissell, Foss, and Hunter; and, by agreement, the mines were to be worked and the moneys made deposited in the First National Bank of Denver, one of the appellees, and credited to the two parties in the proportions above stated. On April 2, 1879, there was on deposit in the bank to the credit of Foss, Bissell, and Hunter $92,502.58. It was in reference to the division of this fund that this litigation arose.

If there had been no purchase of the interest of the Missourians, Bissell, Foss, and Hunter would each have owned three-twelfths of this fund. But Bissell, insisting that he was entitled to a one-third of the one-fourth interest purchased of the Missourians, claimed four-twelfths. Foss and Hunter, insisting that Bissell had no interest in the share purchased of the Missourians, contended that he was only entitled to three-twelfths of the fund, and they jointly to nine-twelfths. Thereupon Foss and Hunter, on April 26, 1879, brought the present suit in equity against the First National Bank of Denver as the depositary, and against Bissell as the adverse claimant, to recover nine-twelfths of the fund. The bank answered the bill and at the same time filed a cross-bill, in which it alleged that it was merely a stakeholder, claiming no interest in the fund, and praying that Foss, Hunter, and Bissell might be required to interplead. Bissell answered both the original and cross-bills, claiming four-twelfths of the fund.

The sum in dispute between the parties seems to have increased after the filing of the original bill, and before final decree amounted to $36,454.35. This sum, by agreement of the parties, was deposited in the registry of the court, and they stipulated that the decision of the court should settle their rights, not only to the fund claimed in the original bill, but to the whole amount in the registry of the court. 3 Fed. Rep. 185.

On final hearing, the circuit court decreed 'that Foss and Hunter were entitled to the...