Finlen v. Heinze

• Decision Date: 20 April 1905
• Citation: 32 Mont. 354
• Court: Montana Supreme Court
• Parties: FINLEN v. HEINZE et al.

32 Mont. 354

FINLEN
v.
HEINZE et al.^*

Supreme Court of Montana.

April 20, 1905.

Brantly, C. J., dissenting in part.

Appeal from District Court, Silver Bow County; William Clancy, Judge.

Action by Miles Finlen against F. Augustus Heinze and other. From an adverse decree on a counterclaim, plaintiff appeals. Affirmed.

W. W. Dixon, A. J. Shores, C. F. Kelly, and Forbis & Evans, for appellant.

John J. McHatton, for respondents.

HOLLOWAY, J.

Upon the former appeal in this case (Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123) a sufficiently explicit statement of facts was made, to which reference is now had, and a repetition of the whole avoided. It will be sufficient in this instance to say that in 1898 plaintiff, Finlen, held certain leases and bonds upon the interests of John Devlin, Mrs. Devlin, Mrs. Reilly, and Mrs. Kelly in the Minnie Healy lode mining claim, and had options to purchase those interest at any time on or before February 3, 1900, upon the payment of $100,000; that in December, 1898, F. Augustus Heinze, hereafter referred to as defendant Heinze, entered into possession of the property, claiming that by oral agreement made on November 21, 1898, Finlen had transferred his leases, bonds, and options to defendant Heinze, and had agreed to execute a writing evidencing such transfer. In February, 1899, Finlen made an unsuccessful effort to recover possession of the property, and in June following commenced this action in ejectment. To the complaint filed, defendant Heinze interposed an answer, and, by way of an equitable counterclaim, pleaded the agreement of November 21st, alleged a breach by Finlen, and asked that specific performance be decreed. To this counterclaim Finlen filed an answer, and to this answer defendant Heinze replied; and upon such counterclaim, answer, and reply the equitable portion of this action was tried, a decision rendered, and decree entered in favor of defendant Heinze, but on appeal to this court that decree was set aside and a new trial ordered. On July 29, 1903, the remittitur from this court was filed in the district court, and on August 10th counsel for the defendant Heinze moved the court to advance the cause and set it for trial. This motion was granted, and the cause set for September 16th. Plaintiff objected to the cause being set for trial, and moved the court to change the venue, on the ground that Judge Harney, who had presided at the former trial, was disqualified from again trying the same. On September 12th this motion was denied, and the cause was thereupon transferred to Department No. 2 of the same court, presided over by Judge Clancy. On September 16th Judge Clancy proceeded to trial, whereupon plaintiff objected to its trial in Department No. 2 on the ground of lack of jurisdiction, and objected to the hearing at that time for the reason that plaintiff was not ready for trial. These objections were overruled, and the trial proceeded upon the counterclaim of the defendant Heinze, the answer of plaintiff, Finlen, thereto, and the reply of Heinze to this answer; the defendant Heinze assuming the affirmative of the issue. After the direct testimony in behalf of defendant Heinze was concluded, he was permitted, over the objection of plaintiff, to amend his counterclaim. The court found the issues in favor of defendant Heinze, and entered a decree in his favor, from which decree, and an order overruling plaintiff's motion for a new trial, these appeals are prosecuted. Some of the errors specified by the appellant were directly involved upon the former appeal, and were there considered and determined. The decision of this court in that instance became the law of this case as to all such questions. Murray v. Polglase, 23 Mont. 401, 59 Pac. 439, and cases cited; Mahoney v. Butte Hardware Co., 27 Mont. 463, 71 Pac. 674.

1. It is contended that “the facts do not sustain the findings.” We assume that what is meant by this is that the evidence is insufficient to sustain the findings of the court.

It is claimed on the part of the defendant Heinze that prior to November 21, 1898, plaintiff, Finlen, had been negotiating for the sale of his interests in the Minnie Healy mining claim, represented by leases and bonds upon and options to purchase the interests owned by John Devlin, Mrs. Devlin, Mrs. Reilly, and Mrs. Kelly; that Finlen had expended at least $54,000 in a fruitless endeavor to make a mine of the property; that he had taken out the tracks, air pipes, and other mining appliances, and had suffered waste and d21ebris to accumulate in the different levels; that there was no ore of any commercial value in sight; that for a year or more prior thereto the only mining done by Finlen in this claim was development work to ascertain whether or not the Boston & Montana Company was trespassing upon and taking ores from a vein which Finlen had been informed apexed in the Minnie Healy claim; that up to this time the ore taken from this entire claim never paid expenses; and that Finlen was anxious to dispose of his interest in the claim. These are facts with reference to which there is not any material conflict in the evidence. On the part of defendant Heinze it is further claimed that prior to November 21st Finlen and John MacGinniss, Heinze's agent, had been negotiating for an assignment by Finlen to Heinze of Finlen's leases and bonds or options on the property, and that these negotiations had progressed so far that MacGinniss had given to Heinze's counsel, McHatton, memoranda of an agreement for the assignment of Finlen's leases and bonds on the property, and that McHatton had drawn up two writings embodying a contract conformableto MacGinniss' ideas of the agreement he had made with Finlen; that on the afternoon of November 21, 1898, Finlen went to McHatton's office, where these writings were presented to him; that Finlen objected to and refused to sign them; that at McHatton's suggestion they went to see MacGinniss at his office with the Montana Ore Purchasing Company; that there they met MacGinniss, the defendant Heinze, and his brother Arthur P. Heinze, and for some time discussed the proposed transfer; that at that meeting Finlen and defendant Heinze came to an agreement by which Finlen assigned his leases and bonds to Heinze by oral agreement that Heinze should, as soon as he elected, go into actual possession of the claim, work the same, keep the leases and bonds alive, and, if the property developed so as to justify Heinze, in his estimation, in taking up the leases and bonds from the Devlins, Reilly, and Kelly, he should thereupon pay plaintiff $54,000 in two equal installments ($27,000 one year after he should take up the leases and bonds, and $27,000 two years thereafter), these payments to be made without interest; that, as a part of this contract, Finlen agreed to commence an action against the Boston & Montana Company, and seek an injunction to prevent that company from taking ore from the vein claimed to apex in the Minnie Healy ground, and from which it was claimed the Boston & Montana Company was taking ore through workings in the Piccolo and Gambetta claims; that this action was to be brought and prosecuted at Heinze's expense, and the proceeds, if any, realized, should belong to Heinze; that, pending the commencement of this action, Finlen should retain possession of the Minnie Healy claim; that McHatton should act as Finlen's counsel, and commence the action as soon thereafter as the papers could be prepared; that Heinze insisted that this agreement should be reduced to writing and signed by Finlen and himself at once; that, owing to Finlen's desire to leave Butte for the East on the evening of this conversation, he (Finlen) declined to wait for the writing to be prepared, and stated, in effect: “You take hold of the property at any time you want to. It is yours now. I have transferred all my right and title to it. *** We understand each other thoroughly. There is nothing here which we have not agreed upon, and you can absolutely depend upon my signing the papers which Judge McHatton will get out. My word is as good as my bond, and I shall be back here before the 1st of January, and I will sign the papers as soon as I get back. In the meantime you can take possession of the property at any time you want to. I have transferred my entire interest in it to you, and you can go ahead and do what work you want to.” And to Judge McHatton he said: “Well, Judge, you go ahead and bring this suit, and draw up an agreement which will outline the different terms and conditions of our understanding, and as soon as I get back from the East I will sign the agreement.” That, relying on this agreement, and the representation of Finlen that he would, on his return to Butte, execute a writing which would evidence the assignment of his leases and bonds, Heinze went into possession of the property on December 23d, and thereafter had exclusive possession of the same, and by the expenditure of large sums of money so far developed the property as to disclose large bodies of valuable ore, thereby greatly increasing the value of the property to such an extent as to justify Heinze in taking up the leases and bonds; that Finlen knew of this work, and at least tacitly approved it; that, soon after the disclosure of these valuable ore bodies, Finlen repudiated the agreement, and notified Heinze's attorney and agent that he (Finlen) would not sign the written assignments, and that he declared the deal off. The terms of this agreement are testified to by defendant Heinze, Arthur P. Heinze, John MacGinniss, and Judge McHatton, the four persons who were present with Finlen when the agreement is alleged to have been made, and the other facts detailed above are sworn to positively by one or more of these witnesses.

Finlen positively denies that any complete agreement was entered into, and states that the principal subject of the conversation on November 21st was the suit against the...