Botsford v. Van Riper

Citation110 P. 705,33 Nev. 156
Decision Date02 September 1910
Docket Number1,828.
PartiesBOTSFORD v. VAN RIPER et al.
CourtSupreme Court of Nevada

Appeal from District Court, Esmeralda County.

Action by L. C. Van Riper and another against Charles H. Botsford and others. From a judgment for plaintiffs and from an order refusing a new trial, defendant Botsford appeals. Affirmed.

Rufus C. Thayer, C. L. Harwood, James F. Peck, Solinsky & Wehe, and Paul C. Morf, for appellant.

Detch & Carney, Thomas, Bryant & Malburn, and R. G. Withers (Mack & Green and Horatio Alling, of counsel), for respondents.

SWEENEY J.

This action is brought by the plaintiffs L. C. Van Riper and Joseph Hutchinson to recover from the defendant Charles H Botsford two-thirds of the profits of a deal whereby the Goldfield Mohawk Mining Company and other mining interests paid as a commission to the defendant, Botsford, 100,000 shares of the Goldfield Consolidated Mining stock then valued at $1,000,000, in consideration of his turning over a certain option which he held on the Combination Mines Company, which made it possible to merge the properties now constituting the Goldfield Consolidated Mines Company, and do away with certain threatened apex litigation then pending and other suits about to be started. This commission of $1,000,000 was earned during a period not in excess of 45 days from the time the parties conceived and agreed to carry out their agreement along the lines of merging the properties to avoid litigation, and is but illustrative of the opportunities which are ever present in mining excitements in great mining camps to those who may be quick, able, and fortunate enough to grasp an opportunity and successfully put it through to a termination. Though this action was commenced by the respondents L. C. Van Riper and Joseph Hutchinson as plaintiffs against Charles H. Botsford and other above-named appellants as defendants, the real controversy is between the respondents L. C. Van Riper and Joseph Hutchinson and the appellant, Charles H. Botsford. All the other appellants joined with Botsford are in the case nominally, and so far as this case is concerned do not seem to have any real interest in the dispute.

The complaint is one based on the doctrine of joint adventure, a doctrine of modern origin, and in effect alleges, in our judgment, the necessary allegations which, if proved, entitle the plaintiffs to the judgment accorded them. The complaint in effect alleges: "First. That the plaintiffs and defendant Botsford entered into an agreement to use their joint efforts for the purpose of securing a certain option and selling the same. Second. That it was agreed that defendant Botsford should be the active agent of the venture in the securing of the option and the sale of the same. Third. That the plaintiffs assisted in the furtherance of the venture in divers and sundry ways by counsel, introductions and personal efforts. Fourth. That it was agreed in the event of the consummation of the venture the plaintiffs and the defendant Botsford should share equally in the profits realized. Fifth. That the venture was successfully terminated under said agreement, and that the defendant Botsford was to receive 100,000 shares of stock of the value of $1,000,000 as compensation. Sixth. That defendant Botsford was attempting to get possession and control of all of said shares of stock, and refused to recognize the plaintiffs as being entitled to any portion of the same as compensation for the securing and sale of said option. Seventh. That the defendant was without this state and insolvent. Eighth. Follows then the prayer that the plaintiffs be declared to be the owners of and entitled to a one-third each of any and all compensation either in stock or otherwise, which the defendant was entitled to by virtue of the consummation of the venture, and for an injunction restraining, and so forth." To this complaint a demurrer was filed, and thereafter an answer, which was thereafter amended. The answer denies all of the allegations of the complaint which would in any way connect the plaintiffs with the said defendant Botsford as a co-adventurer in putting through the deal, and denies that there was ever any agreement or contract entered into at any time between the three parties concerning the subject-matter in the suit. The answer squarely raises the issue as to whether such an agreement, as alleged in the complaint, was made, and upon this substantial issue the case went to trial.

It appears from the testimony adduced, a record of some 3,000 pages, that Charles H. Botsford, the appellant, a New York promoter, an educated gentleman, and a mining expert of some reputation; and a business man of large affairs, during the fall of 1906 came to Goldfield, Nev., when that camp was at the height of its mining excitement and prosperity. He came there for the purpose of investigating the conditions of a lease controlled by the plaintiff Van Riper, whom he had met in New York. Mr. Botsford had invested $15,000 in this lease, and, more money being required to work said lease, the purpose of his visit to Goldfield was to determine the advisability of saving the investment, which would have been lost providing further capital was not forthcoming. While in Goldfield on this mission, Mr. Botsford met the plaintiff Joseph Hutchinson, a mining engineer and promoter of wide experience and reputation and commendable ability, and learned that litigation had been or was about to be commenced by the Combination Mines Company against the Mohawk properties, claiming that the Mohawk veins apexed in the Combination ground. At this time this threatened litigation, which, unless averted by compromise or otherwise determined, would paralyze the prosperity of the district, then in the throes of the wildest kind of a mining boom, caused the people of the camp of Goldfield the most tense feeling of excitement, apprehension, and anxiety, awaiting and hoping for a peaceful compromise or determination of this gigantic legal battle which seemed imminent, and which litigation would, for some time at least, tie up some of the richest mines in the very heart of the Goldfield mining district.

It is contended by Hutchinson, and so alleged in the complaint, and found in the findings of the lower court, which, after a most careful review, owing to the great conflict of testimony on all the material issues, we have concluded not to disturb That he conceived the idea of having the Combination Mines Company and the Goldfield Mohawk Company merge their interests for the purpose of avoiding threatened litigation over the extralateral and other rights of said companies and the mining ground claimed and owned by them, respectively, and during the month of September, 1906, he called the attention of his coplaintiff, L. C. Van Riper, and of the defendant Charles H. Botsford thereto, and submitted to them the idea of securing an option upon the control of the capital stock of said companies or either of them, and also submitted to them his scheme of consolidating or merging the interests of said companies. That the plaintiff L. C. Van Riper and the defendant Charles H. Botsford immediately became interested in such suggestions and in the scheme of consolidation or merger proposed by the plaintiff Hutchinson, and thereafter and during the months of September and October, 1906, they, in conjunction with the plaintiff Joseph E. Hutchinson, made investigations and consulted with each other as to the most feasible plan of securing an option upon the control of the capital stock of said companies, or either of them, and also the most feasible plan of consolidating and merging the interests of said companies. During all of said time the plaintiffs and the defendant Charles H. Botsford were jointly interested in other promotions and in other business enterprises. On or about the 27th day of October, 1906, in Goldfield, Nev., an agreement was made and entered into by and between the defendant Charles H. Botsford and the plaintiffs L. C. Van Riper and Joseph Hutchinson, wherein and whereby they agreed to adopt the ideas and suggestions made by the plaintiff Joseph Hutchinson, and to use their joint efforts to secure an option upon the control of the capital stock of the Combination Mines Company for the purpose of effecting a sale thereof, and they also agreed to use their joint efforts to bring about a consolidation or merger of the interest of the Combination Mines Company with other corporations then existing, or thereafter to be organized. It was also agreed by and between said parties in and by the terms of said agreement that any and all profits, commissions, or compensation that might be realized or made from such enterprise or from their or either of their efforts in the premises should be divided equally between them; that is to say, that the defendant, Botsford, should receive one-third thereof, and the plaintiffs Hutchinson and Van Riper should each receive one-third thereof. It was also agreed by and between the parties in and by the terms of said agreement that the defendant Botsford should have the exclusive charge and control of all negotiations relative to the obtaining of said option and the sale thereof and the effectuating of such merger, but that in conducting such negotiations the defendant Botsford should act for and represent the plaintiffs as well as himself. It was also agreed that each of the plaintiffs should render such services in the premises as might be required of him by the defendant Botsford and under his direction. Pursuant to the terms of the agreement, and on or about the 14th day of November, 1906, the plaintiffs and the defendant Botsford secured an option upon the controlling interest in the capital stock of the Combination...

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30 cases
  • Denny v. Guyton, 28922.
    • United States
    • Missouri Supreme Court
    • May 27, 1931
    ...122, 147 N.W. 1024; Maas v. Lonstorf, 194 Fed. 583, 114 C.C.A. 419; McMullen v. Harris, 165 Iowa, 703, 147 N.W. 164; Botsford v. Van Riper, 33 Nev. 156, 110 Pac. 705; Reece v. Rhoades, 165 Pac. 449; 39 Cyc. 182; Goss v. Lanin, 170 Iowa, 57, 152 N.W. 43; Berry v. Colburn, 65 Va. 493; Boqua v......
  • Hoge v. George
    • United States
    • Wyoming Supreme Court
    • August 5, 1921
    ... ... Mo.App. 427; 70 S.W. 258; Wetmore v. Crouch, ___ Mo ... ___ 51 S.W. 738; Lind v. Webber, 36 Nev. 623; ... 134 P. 461; Botsford v. Van Ripper, 33 Nev. 156; 110 ... P. 705; Ratger v. Ratger, 28 N.J.L. 136; Ryder ... v. Gilbert, 16 Hun. 163; Jones v. Jones, 1 Ired. Eq., ... contracts, the promise, express or implied, to contribute ... capital or labor to the enterprise. ( Botsford v. Van ... Riper, 33 Nev. 156, 110 P. 705.) It is not difficult to ... find evidence of such a promise by the plaintiff in this ... case, and it is not disputed ... ...
  • Cohen v. Mirage Resorts, Inc.
    • United States
    • Nevada Supreme Court
    • February 7, 2003
    ...(noting that Delaware continues to guard the distinction between legal and equitable jurisdiction). 88. See Botsford v. Van Riper, 33 Nev. 156, 196, 110 P. 705, 712 (1910) (noting that the district court administers legal and equitable relief); see also Nev. Const, art. 6, § 14 ("There shal......
  • Denny v. Guyton
    • United States
    • Missouri Supreme Court
    • May 27, 1931
    ... ... 122, 147 N.W. 1024; Maas v ... Lonstorf, 194 F. 583, 114 C. C. A. 419; McMullen v ... Harris, 165 Iowa 703, 147 N.W. 164; Botsford v. Van ... Riper, 33 Nev. 156, 110 P. 705; Reece v ... Rhoades, 165 P. 449; 39 Cyc. 182; Goss v ... Lanin, 170 Iowa 57, 152 N.W. 43; Berry ... ...
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