Fried v. Guiberson

• Citation: 217 P. 1087,30 Wyo. 150
• Decision Date: 04 September 1923
• Docket Number: 1051
• Parties: FRIED ET UX v. GUIBERSON
• Court: Wyoming Supreme Court

217 P. 1087

30 Wyo. 150

FRIED ET UX v. GUIBERSON

No. 1051

Supreme Court of Wyoming

September 4, 1923

ERROR to District Court, Converse County; RALPH KIMBALL, Judge.

Action by S. A. Guiberson, Jr. against Julius Fried and wife for an accounting of proceeds acquired from an assignment of defendant's interest in an oil lease. There was a judgment for plaintiff and defendants bring error.

Reversed and Remanded with Directions.

W. C Shelton and Maurer and Walker for plaintiff in error.

The decision of the trial Court is contrary to law; the evidence established the fact that when Humphreys assigned to Fried an interest in the Mau sublease of Glenrock Sheep Company and Fenex, the plaintiff had long prior thereto, disposed of all interest therein; no confidential relationship existed; the petition does not state a cause of action; there is a failure to join necessary parties defendants. The judgment of the trial Court is not sustained by the evidence. The law governing such transactions as are presented in this case by the written agreements of the parties and their testimony at the trial is not in controversy; it is the application of the law to the facts that raises the issue; practically the last word in the law of joint adventure is set forth in, (Lind v. Weber, Ann. Cas. 1916 pp. 1210-1217, same case reported in 134 P. 461; 135 P. 139, 141 P. 458, see also 15 R. C. L. 501, and Prince v. Lamm, 128 Cal. 120, and Home v. Owen Co., 154 F. 820.)

Robert D. Hawley and A. V. Andrews for defendant in error.

The case rests wholly upon the facts as disclosed by the evidence; the judgment of the trial Court is fully sustained by the evidence; the parties were coadventurers; there is not a shadow of reason why defendants should acquire unto themselves as against the plaintiff, for no consideration other than a trifling advance of expense money, the entire ownership and the fruits derived from the capital end of the syndicate as to the properties obtained as they were admittedly through the information, knowledge and activities and at the expense of the entire syndicate, within the scope of the syndicate agreement as established by the evidence. We direct the attention of the Court to the Chapter on joint adventure as set forth in Vol. 15, R. C. L. 501, and Lind v. Weber, Ann. Cas. 1916A pp. 1002-1217. The bill of exceptions should be stricken for the reason that it does not contain all of the evidence. (Hardin v. Card, 14 Wyo. 479), the bill of exceptions was not presented for allowance within the time. (Meadows v. Roberts, 21 Wyo. 43.) The withdrawal of the bill for correction was in fact an attempt to present an entirely new bill of exceptions which is not permissible. (Martin v. R. R. Co., 53 Ark. 252.) A bill unintelligible, confused or conflicting will be interpreted against the appellant. (McReynolds v. Jones, 30 Ala. 101; Spahn v. People, 137 Ill. 546; Stout v. Woods, 79, Ind. 109; State v. Johnson, 36 La. Ann. 852; Price v. Powell, 3 N.Y. 322; Holliston v. Reynor, 9 O. St. 1; Walker v. State, 19 Tex.App. 176; French v. Ware, 65 Va. 338; Hanna v. Mass. 122 U.S. 24; Suydam v. Williamson, 20 Howard (U.S.) 427.) Courts will not look with favor upon defective pleadings that have caused inconvenience. (Meyer v. Binkleman, 5 Colo. 133.) A second extension of time within which to present a bill cannot be granted in vacation. (Sweetser v. McCrea, 97 Ind. 404; Missouri R. Co. v. Russell, 60 F. 501.) Attorneys for defendant in error received no notice of either the first or second applications for extension of time within which to present bill of exceptions; this is clearly contrary to all good practice, if not contrary to law. (Taylor v. Dare, 4 Colo.App. 109; Dicky v. Bruce, 21 Ill.App. 448; New Albany Ry. Co. v. Wilson, 16 Ind. 402; cases reported in 19 Ind. 138; 24 Ind. 346; 25 Ind. 417; Purcell v. Boston etc., 151 Mass. 158; Hemphill v. Morrison, 112 N. Car. 756; McKay v. Union R. Co., 13 Mont. 15.) 5864 C. S. makes no provision for more than one extension of time; the extension must be secured before expiration of time limited in the first order. (Furnace Co. v. Glasscock, 86 Ala. 244.)

W. C. Shelton, opposing motion to strike bill of exceptions.

The bill was prepared, presented, corrected and settled in compliance with the Statutes of Wyoming; decisions from other States having little or no bearing on the question. (Hardin v. Card, 14 Wyo. 479.) Some of the exhibits were missing from the Court files; a mass of documentary exhibits was submitted under a stipulation that everything attached to the depositions of Arnold and Mau should be considered by the Court, if deemed competent or material; fully 80 per cent of this documentary evidence was not used by counsel or relied upon by the Court in reaching its decision; the bill contained a narration of the deposition evidence; no new bill was presented to the trial Court, but only additions suggested by that Court. The trial Judge resigned to take a place on the Supreme Court; counsel for defendant was absent in another State hundreds of miles distant; the official reporter resigned and left the State; one of counsel for plaintiff in error resided on the Pacific Coast; there is no just ground for charging plaintiff in error with needless delay. The motion should be denied.

ILSLEY, District Judge. POTTER, Ch. J., and BLUME, J., concur.

OPINION

ILSLEY, District Judge.

This case is here on error, and was heard upon a motion to strike the bill of exceptions and also at the same time on the merits. The motion to strike the bill will be denied for reasons to be stated in an opinion by the Chief Justice.

In April, 1915, the parties involved in this suit embarked upon a joint adventure. Mr. Waltemeyer, a geologist, interested another geologist, Ralph Arnold, of California, in the development of the Big Muddy Oil Dome in Wyoming. It was agreed that those participating in the joint adventure should share in the profits in the following manner; Those furnishing the capital were to receive 50%, and those doing the labor in the field were to receive 50%. Mr. Arnold interested the defendant, Julius Fried, who put in $ 250, and later a Mr. Whitley put in $ 125 and the plaintiff Guiberson put in $ 125. Mr. Arnold and Mr. Waltemeyer were to share their profits in the adventure with a Mr. Charles A. Mau, an associate of Mr. Arnold's, so that in the beginning Waltemeyer, Arnold and Mau, who were to do the labor, were to receive 50%, and those furnishing the capital were to receive the following interests: Guiberson a 1/8, Whitley a 1/8, and Fried a 1/4 interest. With the money thus raised, Mau and Waltemeyer came to Wyoming and procured oil leases on several hundred acres of land in the Big Muddy field. Upon this trip it was found that certain of these lands were patented and other lands belonged to the State of Wyoming, and there seems to have been some discussion among the joint adventurers as to whether or not it was advisable to procure these leases. In any event, after a second and third trip to Wyoming, two leases were obtained upon patented lands known respectively as the Glenrock Sheep Company and the Fenex leases. These leases were secured by Mr. Waltemeyer and were taken in the name of Charles A. Mau. In the beginning powers of attorney were given Mau by the various members of the adventure, and though the leases were taken in Mau's name they were to be held in trust for the syndicate, the leases thus being left in escrow until drilling should be commenced. These leases were obtained on May 11 and May 14, 1915, and on the 29th day of May, 1915, Julius Fried, one of the defendants, as one party, and Charles A. Mau, Ralph Arnold and T. S. Waltemeyer, the other parties, entered into an agreement whereby Fried, in consideration of financing the procurement of oil and gas leases on private patented lands, was to receive a 50% interest in the leases and the second parties were to receive jointly a 50% interest, and in this agreement it was recited that Mau had obtained for the benefit of all of the parties to the agreement the oil land leases known as the Glenrock Sheep Company and Fenex leases.

It will be remembered that Charles A. Mau was acting as trustee for all of the parties to this venture, handled most of the correspondence and did a great deal of work in obtaining leases and taking care of the business affairs of the syndicate. Now, in July, 1915, Fried withdrew from Mau his power of attorney, and, as one of the witnesses puts it, there was a general row. The plaintiff Guiberson was claiming an interest in the Glenrock Sheep Company and Fenex leases, and Fried, by reason of the agreement referred to of May 29, claimed to have a 50% interest in the leases. And in October, 1915, Guiberson made a claim to an interest in these leases to the same extent that he had an interest in the original leases obtained by Waltemeyer on his first trip to Wyoming. Mau told the plaintiff that he would not assign or deal with the leases without protecting Guiberson's interest. On the first day of July, 1916, Mau subleased all of the Glenrock Sheep Company and Fenex lands to A. E. Humphreys in consideration of $ 12,500 cash and a 2 1/2% royalty on all oil produced over and above that which was to be paid by Mau to the Glenrock Sheep Company and Fenex as provided for in the original leases. At this time there was a good deal of contention among the co-adventurers. The defendant Fried warned Mau not to dispose of his interest in the leases, and Waltemeyer did the same. Both of them stated that they would deal with their own interests in the matter.

After the sublease was made to Humphreys, Mau wrote a long letter to Arnold, Whitley, Guiberson, Fried and Waltemeyer, in which he defined what he...