Haskins v. Curran

• Decision Date: 26 December 1895
• Citation: 43 P. 559,4 Idaho 573
• Parties: HASKINS v. CURRAN
• Court: Idaho Supreme Court

43 P. 559

4 Idaho 573

HASKINS v. CURRAN

Supreme Court of Idaho

December 26, 1895

PLEADINGS-CONTRACT-PARTNERSHIP.-Under the contract sued on herein a partnership was formed for promoting the sale and development of the mining claims referred to in the complaint.

MINING PARTNERSHIP-DISSOLUTION OF PARTNERSHIP.-In the case of an express promise by one partner to repay to the other his share of advances made by the latter on account of partnership business, the amount of such share becomes the debt of the promisor recoverable by an action at law, without dissolution of partnership or an accounting between the partners.

COUNTERCLAIM-TESTIMONY.-Held that the answer sets up a subsequent contract to the one sued on as a defense and counterclaim, and that defendants should have been permitted to introduce all pertinent testimony tending to prove that issue.

INSTRUCTIONS.-In the trial of a case to a jury it is error for the court to instruct the jury that there is no evidence tending to prove the defense or counterclaim of defendants, when there is such evidence. Held, that the instructions asked by defendants should have been given.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

New trial granted. Judgment set aside, and cause remanded, with directions. Costs awarded to appellants.

C. W Beale and W. W. Woods, for Appellants.

"A mining partnership exists when two or more persons, who own or acquire a mining claim, for the purpose of working it and extracting the mineral therefrom actually engage in working the same." (Rev. Stats., sec. 3300.) "It is not necessary that all the co-owners in a mining claim shall engage in working a mine, together or separately. The partnership exists without any agreement, either express or implied." (Hawkins v. Spokane Hydaulic etc Co., 3 Idaho 241, 28 P. 433.) Nor is any express agreement to share in the profits and losses necessary for the formation or existence of a mining partnership. (Rev Stats., sec. 3301.) It is not even essential or necessary that the property worked should have been purchased by partnership funds. (Rev. Stats., sec. 3304.) The general proposition that one partner in relation to partnership affairs and transactions cannot sue his copartner at law is elementary; his remedy is by bill for dissolution and accounting. (Barnstead v. Empire Min. Co. , 5 Cal. 300; Ross v. Connell, 45 Cal. 133; Graham v. Holt. 3 Ired. 300, 40 Am. Dec, 408; Murray v. Bogert, 14 Johns. 318, 7 Am. Dec. 466; Harris v. Harris, 39 N.H. 52; McDonald v. Holmes, 22 Or. 212, 29 P. 735.) Before settlement and accounting it is also true that one partner cannot maintain an action to compel a contribution for partnership debts paid, or advances made the firm. (McDonald v. Holmes, 22 Or. 212, 29 P. 735; Crossley v. Taylor, 83 Ind. 337.) The condition upon which a deed is placed in escrow may be expressed in writing or rest in parol, or be part in writing and part oral. (6 Am. & Eng. Ency. of Law, 863; Stanton v. Miller, 58 N.Y. 192.) Instructions must not assume material facts in controversy, and it is error for the court in his charge to assume as proven a fact which is in issue. (Leland v. Isenbeck, 1 Idaho 469; People v. Ah Fung, 16 Cal. 137; Caldwell v. Center, 30 Cal. 540, 89 Am. Dec. 131; McNeil v. Barney, 51 Cal. 603; Wood v. Tomlinson, 53 Cal. 720; Baltimore etc. R. R. Co. v. Woodruff, 4 Md. 242, 59 Am. Dec. 72.) An erroneous instruction is not cured by a correct instruction in another part of the charge. (Lufkins v. Collins, 2 Idaho 150, 7 P. 135; People v. Wong Ah Ngow, 54 Cal. 151, 35 Am. Rep. 69; People v. Valencia, 43 Cal. 552; Hickman v. Griffin, 6 Mo. 37, 34 Am. Dec. 124.)

W. B. Heyburn and E. M. Heyburn, for Respondent.

The defense below was conducted upon two theories contended for by defendants. The first was that this was a mining partnership, and was subject to the rules governing such a partnership created under the statutes of Idaho and that one partner could not sue another directly, but must proceed for an accounting. The second position contended for by defendants below was that the contract sued upon has been canceled by the substitution of another contract. There are two sufficient objections to the positions assumed by counsel, both on the trial and in this court, that the plaintiff and defendants were mining partners as provided for in section 3300 of the Revised Statutes of Idaho. The first objection is that these parties did not own the mining claims upon which they were working, and the second is, that they were working them under a specific contract or agreement which was in lieu of any statutory provisions. Before the expiration of the Curran bond on these properties, and after Haskins and Curran had become mutually interested in making a sale of them, Haskins succeeded in bringing Mr. Boyle from Nevada to look at these properties with a view to buying them. That upon his examining them he agreed to take a bond on them. That certain deeds were placed in escrow to Mr. Boyle to be delivered to him upon the payment of so much money. That it was simply an option to Mr. Boyle to purchase the properties should he see fit to do so, upon the payment of the price named. It has long since ceased to be contended in any court that under such a contract the party taking the bond or option can be compelled to exercise his option unless he sees fit to do so. (Finnerty v. Fritz, 5 Colo. 174; Gordon v. Darnell, 5 Colo. 302.)

The respondent, William S. Haskins, brought this action against the appellants, Martin Curran and Susie Hussey, to recover $ 3,649.97, with interest thereon, on account of certain advances claimed to have been made by him under the following contract, to wit:

"The undersigned, Martin Curran and Susie Hussey, being the owners of a certain mining bond held by them of the Paymaster, Clear Grit and Lost Wonder lode claims, held in the name of the said Martin Curran, and being without sufficient money to meet and perform their obligations under said bond, it is hereby agreed that the undersigned, W. S. Haskins, shall furnish such money so long as it shall be mutually agreeable to him and the said Martin Curran and Susie Hussey to carry out the terms of said bond; and, in consideration of such advancements, said Martin Curran and Susie Hussey hereby admit him as an equal one-third partner in and under said bond, and in and to all property, rights, titles and interests therein and thereunder, and obligate themselves to repay him on or before June 3, 1892, two-thirds of all moneys so advanced by him, with interest at the rate of ten per cent thereon per annum from the date of such advancements, with costs of collecting the same, if any, including reasonable attorney's fees. Witness the signature of said parties, this ninth day of October, 1891.

"MARTIN CURRAN.

"SUSIE HUSSEY.

"WM. S. HASKINS."

The defendants, by their answer, deny the allegations of the complaint, and set forth what they claim to be the facts of the transaction out of which the contract sued on arose; and further, as a counterclaim, they aver that a contract was entered into by the parties to this suit subsequent to the one sued on herein, whereby the defendants sold all of their two-thirds interest in the contract that they held for the foreclosure and working of the mines referred to in the complaint, for which interests the plaintiff agreed to pay them $ 2,000, and release them from any and all claims which plaintiff had against them under the contract sued on; and demanded judgment for the sum of $ 2,000, with interest thereon from the nineteenth day of November, 1891. The case was tried by the court, with a jury, and a verdict and judgment given and entered in favor of plaintiff for the sum of $ 2,309, with $ 230.90, as attorney's fees. A motion for a new trial was made and overruled. This appeal is from the order denying a new trial and the judgment. Reversed.

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

Appellants assign sixty-seven errors, and demand a reversal of both the order denying a new trial and the judgment, and a dismissal of the action.

Appellants open the argument in their brief with the proposition that because the bond which appellant Curran had on the mines did not, in terms, require him to work them, the plaintiff cannot recover for money advanced for that purpose; that the contract sued on only required Haskins to advance money to carry out the obligations of Curran and Hussey with the owners of said mines, and indorsed on the deed or envelopes which contained them, and deposited in the bank; that the conditions thereon indorsed only provided for the payment of money to the owners, and contained no mention of work to be performed on the mines. It appears that this contention was first raised in this court, but I have concluded to pass upon it. The facts appear in the record that, at the time the contract sued on was made, the appellants were working said mines, and the first advance of money made by respondent amounted to $ 2,750, $ 2,400 of which was paid to the owners of the mines, and the balance, to wit, $ 350, was paid by Mr. Curran for work done on the mines. Mr. Curran testified that he worked the Paymaster mine with Mr. Haskins until November 8, 1891, when Haskins told him to quit work, that he would not put up any more money. We think the record clearly shows that the contract sued on contemplated that the mine should be worked, and that Haskins should put up money therefor, as long as it was agreeable for him so to do. There is no merit in the contention.

It appears from the record that the appellants defended in the court below on two grounds, to wit: 1. That a mining partnership was formed by...