Doyle v. Burns

• Decision Date: 09 April 1904
• Parties: JAMES DOYLE, Appellee, v. JAMES F. BURNS, Appellant
• Court: Iowa Supreme Court

99 N.W. 195

123 Iowa 488

JAMES DOYLE, Appellee, v. JAMES F. BURNS, Appellant

Supreme Court of Iowa, Des Moines

April 9, 1904

Appeal from Pottawattamie District Court.--HON. W. R. GREEN, Judge.

ACTION at law to recover the value of certain mining stocks received and used or held by defendant, in which plaintiff claims an interest. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

Reversed.

A. T Gunnel, T. M. Patterson, C. S. Thomas, Carroll Wright, Ross & Ross, Walter I. Smith, Saunders & Stuart and Flickinger Bros for appellant.

Chas J. Hughes, Jr., Wright & Baldwin, Scott Ashton and A. W. Askwith for appellee.

OPINION

DEEMER, C. J.

Plaintiff contends that he and defendant in the year 1891 went to what is known as the "Cripple Creek Mining District," in the state of Colorado, for the purpose of prospecting for and locating mining claims, and that on or about February 2, 1892, they entered into an agreement whereby each should have an one-half interest in any and all mining claims which might thereafter be located by them, or either of them, or in which they, or either of them, might obtain an interest, each to furnish such labor, supplies, or money as were necessary to perfect locations, etc.; that under said agreement there was located in El Paso county, Colo., the Tidal Wave lode mining claim, the certificate whereof and the title thereto being taken in the name of the defendant; that under said agreement defendant also procured and took in his own name two certain other lode mining claims, known as the "Devil's Own" and "Bobtail No. 2"; that plaintiff performed labor and furnished supplies for and upon each claim, entered into the possession thereof jointly with defendant, and assisted him in perfecting the title thereto. He further alleges that in March of the year 1894 defendant sold the Bobtail No. 2 to the Portland Mining Company, receiving therefor one hundred four thousand, six hundred and twenty-five shares of stock in the said Portland Mining Company, which belonged to the plaintiff; that in 1895 defendant sold the Devil's Own and the Tidal Wave claims to the said mining company, receiving therefor one hundred and twenty-seven thousand, six hundred and seventy-eight shares of stock in said company, which belonged to plaintiff, by reason of the aforementioned agreement; that defendant has received as dividends on the stock received from the Bobtail No. 2 claim the sum of $ 1.30 per share, and the sum of $ 1.20 per share on the stock received for the other claims. He also alleges that defendant has refused to deliver to plaintiff the said stock and dividends belonging to him, and that the stock is worth $ 3 per share. His prayer is for judgment for the value of the stock, and for the amount of the dividends received thereon. Defendant, among other things, admitted that he held title to the claims hitherto mentioned in his own name, and admitted that he had conveyed the same to the Portland Mining Company, but denied that plaintiff had an interest either in the claims themselves or in the stock received therefor, and denied plaintiff's ownership of any of the stock, or dividends received thereon. Other issues were tendered by the answer, which will be referred to during the course of this opinion. These were the ones on which the case was submitted to the jury, resulting in a verdict and judgment for plaintiff in the sum of $ 446,922.73. The jury specially found that plaintiff had no interest in the Devil's Own claim, but that he did have the interest claimed by him in the Tidal Wave and Bobtail No. 2.

There are four hundred and forty-five assignments of error, and it is manifest that we cannot consider all of them. Indeed, we are not called upon to do so, for but a comparatively few of them are argued by counsel. Once for all, we may say that if the action is properly at law--a point we shall hereafter consider--the verdict has such support in the evidence that, were we acting as an appellate tribunal, we should not interfere therewith. We shall discuss such of the assignments of error as are argued, and seem of sufficient importance to demand separate consideration. Learned counsel tried the case in the court below, and we have had the advantage of able and exhaustive briefs, with such suggestions in oral argument as were deemed important to a full understanding of the question presented. We shall not take up the points in the order in which they are presented by counsel, but chronologically.

A judgment was at one time entered against the defendant by default for nearly double the amount of the verdict. This default judgment was set aside by the trial court on these conditions: That defendant should dismiss proceedings brought by him in the courts of Colorado against the plaintiff-enjoining him (plaintiff) from proceeding with his case in this state; that he cause to be set aside all judgments and decrees obtained by him in the state of Colorado enjoining plaintiff from prosecuting this action, dismiss his proceedings for contempt brought in the Colorado courts, release any judgment obtained in these proceedings, and refrain from bringing any further proceedings against plaintiff in the courts of Colorado to enjoin these proceedings. It was also conditioned upon defendant's permitting this cause to be prosecuted where brought, and provided that he should not remove it to any other court without plaintiff's consent. Thereafter defendant filed a showing of voluntary compliance with these conditions, but, before any final order setting aside the default was entered, the trial court made an amendatory order to the effect that defendant should pay to plaintiff the sum of $ 2,200 for the use of his attorneys in obtaining the default judgment. This amount was also paid voluntarily and without objection or protest, and the default was, on defendant's motion, set aside, and the cause again docketed for trial. These rulings are complained of. Much interesting history is involved in this feature of the case, which it is not deemed profitable to consider, for the reason that defendant voluntarily and without protest complied with each and every condition imposed, and secured the setting aside of the default judgment after compliance with the conditions on his own motion. Having so complied with all the conditions and provisions, he is not in position to complain of them on this appeal. We are not to be understood as holding that in such a case conditions might not arise which would justify a court in waiving some of the conditions, because of matters transpiring after the order was made, but no such question is here presented, and we make no definite pronouncement upon the point. Borgalthous v. Ins. Co., 36 Iowa 250, and M. & M. R. R. Co. v. Byington, 14 Iowa 572, are conclusive of the proposition presented.

II. Before the case went to trial, and many times thereafter, the defendant insisted that this action was not triable at law, and he moved to transfer it to the equity docket, and in many other ways raised the point which he now emphasizes in argument as a ground for reversal of the judgment. The character and nature of the action becomes a very material inquiry, in view of the claims made by appellant's counsel. They insist, first, that plaintiff pleads a partnership existing between him and the defendant or, if this be not true, that defendant is sought to be charged as a trustee holding property for plaintiff, for which he should account, and that in either event the action is solely cognizable in a court of chancery. Inquiry must be made as to the exact nature of the action, in order to properly solve the problem. Mining partnerships are somewhat peculiar in their nature, and the ordinary rules regarding such relations do not, it seems, apply. Of course, there may be a strict partnership in a mining venture--for instance, where it is formed for the purpose of working a mine by extracting the minerals therefrom--and in such a case there must be an accounting in equity. But parties may be tenants in common of a mining property without being partners. It is alleged in the petition that the contract in this case was for prospecting, locating, and developing mining claims on the public domain in the Cripple Creek district for the joint and equal benefit of the parties, and each was to furnish labor, supplies, and money for this purpose. If by this it was meant to charge that the mine, when discovered and developed, should be worked on joint account, doubtless a partnership would have been created, at least as to the working of the mine. But the petition does not allege such an agreement, nor did plaintiff's evidence show it. Moreover, the jury put this matter at rest by an answer to a special interrogatory submitted to it. We agree with the Supreme Court of Montana, in Boucher v. Mulverhill, 1 Mont. 306, in saying that such agreements should be construed according to the intent of the parties, and, while they may speak of each other as partners, this term, as is well known, does not in all cases mean that the parties are engaged in a joint enterprise, each agreeing to share in the profits and to bear a part of the losses of the particular business. In order to create a mining partnership, it seems to be necessary that there be an agreement to work the mine for the joint profit of the parties. Otherwise the owners of the property, acquired in such manner as is here charged, are tenants in common. Duryea v. Burt, 28 Cal. 569; Hartney v. Gosling, 10 Wyo. 346 (68 P. 1118); Patrick v. Weston, 22 Colo. 45 (43 P. 446); Anaconda Copper Min. Co. v. Butte & B. Min. Co., 17 Mont. 519 (43 P. 924). Indeed, it seems to be held that the mere use of property so obtained for partnership purposes does...