Bruun v. Hanson

• Decision Date: 22 May 1939
• Docket Number: No. 8887.,8887.
• Citation: 103 F.2d 685
• Parties: BRUUN et al. v. HANSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

103 F.2d 685 (1939)

BRUUN et al. v. HANSON et al.

No. 8887.

Circuit Court of Appeals, Ninth Circuit.

April 20, 1939.

Rehearing Denied May 22, 1939.

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Ralph S. Hamilton and Bronaugh & Hamilton, all of Portland, Or., and O. C. Moore, of Spokane, Wash., and W. Lair Thompson and McCamant, Thompson, King & Wood, all of Portland, Or., for appellants.

A. N. Whitlock, of Seattle, Wash., for appellees Harrison and Sunshine Consolidated, Inc.

A. L. Morgan, of Moscow, Idaho, for appellees Hanson and Bean.

Therrett Towles, of Spokane, Wash., and W. F. McNaughton, of Coeur d'Alene, Idaho, for appellee Sunshine Extension Mines Co.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

This litigation arises out of the disposal of certain mining properties, at one time owned by one Charles Gullickson, deceased, for stock in a corporation, and an agreement made by the heirs of deceased, with the administrator of his estate and the latter's attorney, by which the administrator and the attorney obtained a part of the stock in payment of their claims against the estate.

The mining claims in question consist of about 153 acres and lie in Shoshone County, Idaho, about six miles from the town of Kellogg. To the east of the claims, and adjacent thereto, is the property of the Sunshine Mining Company, a Washington corporation, the active mine workings of which extend within a few hundred feet of the eastern boundary of the Gullickson claims. North of the Gullickson claims is the Crescent Mine, the active mine workings of which extend within a few hundred feet of the northern boundary of the Gullickson claims. The Crescent Mine is owned or controlled by Bunker Hill & Sullivan Mining & Concentrating Company, whose holdings, directly or through subsidiaries, in general, extends west about two miles and then southward. Thus between the Bunker Hill boundary on the west and the Sunshine Mining Company on the east, roughly speaking, is a strip of land about two miles long, and bounded on the north by Bunker Hill property. In the northeast corner of that strip, lie the Gullickson claims. A small group of claims, claimed by McIlwee and Rairden divided the Gullickson claims.

In the two-mile strip mentioned, were several other groups of claims. One group was claimed by American Lead Mines, Ltd., and was south of the Gullickson claims. To the west of both of these groups, were the claims of Carl Arenander, which upon his death were held in his estate. Between the Arenander group and the Bunker Hill boundary at the western end of the strip was a group of claims owned by Rockford Mining Company, Limited, of which Walter H. Hanson was president. Interspersed between these various groups were a few other claims, and some unlocated land in the public domain.

Deceased and his brother were the owners of the claims until the latter's death about 1910, when deceased bought from appellants their interest in the claims as heirs of the deceased brother.

On July 24, 1928, Gullickson brought suit in a state court in Idaho against Sunshine Mining Company, to quiet title to some of the claims. He was represented by Walter H. Hanson, who had been his attorney for many years. By stipulation, after removal to the federal court and after answer, the cause was dismissed without prejudice on June 3, 1929.

On June 12, 1929, Gullickson brought suit against McIlwee and Rairden to quiet title to some of the claims, in a state court in Idaho. McIlwee and Rairden filed an answer and cross-complaint seeking to have their title to the claims quieted. While that suit was pending, and on March 6, 1930, when he was about 77 years old, Gullickson died, leaving as his sole heirs his two sisters, who were and are residents and subjects of Norway and are appellants here.

Appellant Hilda Bruun was about 66 years old at the death of Gullickson. She had a public school education which she finished when she was 14 years old. She had never been outside Norway. She understood, spoke and wrote the Norwegian language only. The only business she had ever engaged in was sewing men's ties. She had three sons: Sigurd was 43 years old and was engaged in the electrical installation business, had had a "Technical High School" education, but did not understand the English language; Bjarne, age 39, hereinafter called Bruun, was a seaman, and fully understood the English language; Frithjof, age 36, was educated as an "office clerk", assisted Sigurd in his business, was engaged in the sale of an American invention to prevent punctures of automobile tires, and understood and wrote the English language. Sigurd and Frithjof were fairly successful in their business ventures.

Appellant, Benedicte Solum, was about 70 years of age at Gullickson's death. She had never been outside Norway. She had had a public school education which she finished at age 14. She understood, spoke and wrote the Norwegian language and understood the Swedish and Danish languages, but did not understand English. For many years she had worked for a corporation in Norway, selling food over the counter.

The correspondence and other documents sent appellants by Hanson and Hull, hereinafter mentioned, were written in English. Frithjof would translate them, and appellants, after discussing the various matters with Sigurd and Frithjof, would make a decision, which would be set forth in a letter written by Frithjof and signed by appellants, when it was not necessary to execute documents. Practically all the correspondence written by Hanson was addressed to Benedicte Solum, but for brevity, we will refer to it as addressed to appellants.

On March 18, 1930, Hanson wrote appellants, advising them of Gullickson's death, and regarding the mining claims stated: "He owned a group of mining claims on Big Creek in this county, close to a producing mine, which is a valuable piece of property. So far as I know it has no ore in commercial quantities and in order to prospect or develop it in an effort to make a mine out of it, it will require the expenditure of a great deal of money * * *" He also stated that Gullickson had received several offers to purchase the property, varying from $25,000 to $35,000 but which were refused, and that "I will have an administrator appointed by the court to take charge of the estate." On the following day Hanson again wrote appellants asking for dates and other details.

Appellants answered these letters on April 9, 1930, saying:

"* * * In his Gullickson's letters he has very often named you and Mr. Coumerihl as his particular friends, whom we could fully rely upon in case anything should happen to him. So we are entirely thankful, Mr. Hanson, that you are willing to take on the winding up of his estate, and we are sure you will do your best to have it settled in the best way * * *

"After having conferred with each other we ask you, Mr. Hanson, kindly arrange his estate in your best judgment sic, as we understand that we no opinion can have as regards the details in the matter in spite of the fact that he during the years has kept us proportionally well informed of his affairs. However, we would point out that it might be desirable to have the estate cleared off in the shortest time possible, yet such as the individual sales being not forced at too much expense of the values."

On May 3, 1930, one Hayes, a stranger to all the proceedings here, wrote Bruun, who was then in San Francisco, advising him to go to Idaho and settle the litigation with McIlwee and Rairden. The attorney for the Norwegian consulate in San Francisco wired Hanson on May 9, 1930, stating that Bruun had applied for advice about administering the estate of Gullickson. Hanson wrote the attorney on May 13, 1930, stating that Bruun would have to be a citizen of the United States and a resident of Idaho, before he could be appointed administrator.

Hanson filed a petition in a probate court in Idaho praying for the appointment of Dr. J. R. Bean, as administrator, and Bean was so appointed on June 4, 1930. On that day appellants wrote Hanson, enclosing the letter of Hayes to Bruun, sent them by the latter, saying that "We have discussed the matter together with Hilda's two other sons, and of course we find no reason for making any change in consequence of the letter from Hayes" and that they preferred the litigation against McIlwee and Rairden to be settled without a lawsuit.

Hanson wrote appellants on June 17, 1930, that Bean, Gullickson's "old friend" had been appointed administrator, and that an inventory and appraisement would be made and sent soon showing the value of the property to be less than market.

Appellants wrote Hanson on October 6, 1930, that Bruun, who had returned to San Francisco, was proceeding to Idaho, that he could do such work on the mining claims which Hanson had theretofore hired done, that he was to be paid by the estate, and: "Besides, as it may possibly happen that you on a prospective sale or other events in the matter would be obliged to come to a speedy decision, it might be advantageous to have him at the place as our representative, as he approximately knows what conclusions we would make up in each individual case." Bruun negotiated for settlement of the litigation with McIlwee and Rairden, and also for sale of the mining claims. Appearing in the record is a document entitled "Declaration" signed by appellants, wherein they agreed to sell the mining claims for not less than $15,000 to Sunshine Mining Company, the latter to settle with McIlwee and Rairden. Nothing came of that transaction. On December 6, 1930, appellants executed a document entitled "Authorisation" sic wherein they authorized Hanson and Bruun "in co-operation — without further authorisation sic — to sell the property of the estate".

Appearing in the file of the probate proceeding is a claim, verified by Hanson on December 1,...