Houser v. Austin

• Decision Date: 03 March 1886
• Citation: 2 Idaho 204,10 P. 37
• Parties: HOUSER ET AL v. AUSTIN ET AL
• Court: Idaho Supreme Court

10 P. 37

2 Idaho 204

HOUSER ET AL v. AUSTIN ET AL

Supreme Court of Idaho

March 3, 1886

PRACTICE-SUBMISSION OF ISSUES IN EQUITY.-In equity it is within the discretion of the court to submit both legal and equitable issues to the jury at the same time.

REFORMATION OF CONTRACT.-To authorize the reformation of a written contract on the ground of mistake, the evidence must leave no reasonable doubt in the mind of the court as to the mistake. The mistake must be mutual, and it must appear that both have done what neither intended.

EVIDENCE.-Where a person is proved to have caused a witness to have absented himself from the trial, the presumption arises that the evidence of the witness, if given, would be against his interest.

APPEAL from District Court, Alturas County.

Reversed and remanded.

Huston & Gray and R. Z. Johnson (John T. Morgan, of Counsel), for Appellants.

The court erred in submitting to the jury the special issues before the equitable issues in the action had been disposed of, and before the right of respondents to recover, or to any damages or relief had been determined. (Webber v Marshal, 19 Cal. 457; Lestrade v. Barth, 19 Cal. 660, 671; Arguello v. Edinger, 10 Cal. 160; Harrisson v. Jeneau Bank, 17 Wis. 361; Estrada v. Murphy, 19 Cal. 249, 272, 273.) Courts of equity will not reform written instruments unless the mistake or fraud alleged is admitted or proved beyond a reasonable doubt. (2 Pomeroy's Equity Jurisprudence, sec. 859, and note, p 326; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; S. C., 107 Mass. 316, 317; 1 Sugden on Vendors sec. 11, pp. 212-215; Sawyer v. Hovey, 85 Mass. (3 Allen) 331, 333, 81 Am. Dec. 659; Lyman v. United Ins. Co., 17 Johns. 373; Nevins v. Dunlap, 33 N.Y. 680; Gillespie v. Moon, 2 Johns. Ch. 585, 7 Am. Dec. 563; Hearne v. Marine Ins. Co., 20 Wall. 490; Howland v. Blake, 97 U.S. 626; Ivinson v. Hutton, 98 U.S. 82; Insurance Co. v. Nelson, 103 U.S. 544, 548; Andrews v. Essex Ins. Co., 3 Mason, 10, Fed. Cas. No. 374; United States v. Munroe, 5 Mason, 557, Fed. Cas. No. 15, 835; 1 Story's Equity Jurisprudence, secs. 152, 157; Spare v. Home Ins. Co., 9 Saw. 154, 19 F. 14; Lestrade v. Barth, 19 Cal. 661, 675; Levins v. Lazzarovich, 55 Cal. 52, 54; Kerr on Fraud and Mistake, 421, 422.) Conduct or representation to work an estoppel must be with knowledge of the facts by the party sought to be estopped. (McGarrity v. Byington, 12 Cal. 431; Morrison v. Caldwell, 5 T. B. Mon. 425 17 Am. Dec. 84; Stuart v. Luddington, 1 Rand. 403, 1 Am. Dec. 550; Brewer v. Boston etc. R. R. Co., 5 Met. 478, 39 Am. Dec. 694; Finnegan v. Canaher, 47 N.Y. 500; Herman on Estoppel, 413, 415, 439; Bigelow on Estoppel, 480, 531, 548; Reynolds v. Mutual Fire Ins. Co., 34 Md. 280, 6 Am. Rep. 337; Flagg v. Mann, 2 Sum. 563, Fed. Cas. No. 4847.) The other party must have been ignorant of the truth, and must have honestly relied and acted upon the statement or act which is claimed to work the estoppel. (6 Wait's Actions and Defenses, 684, 685, 694; Hefner v. Vandolah, 57 Ill. 520, 11 Am. Rep. 39; Herman on Estoppel, 343; Steel v. Smelting Co., 106 U.S. 456; Brant v. Virginia Coal etc. Co., 93 U.S. 327, 337; Corning v. Troy Iron etc. Factory, 40 N.Y. 203.) The alleged admission, act or conduct must have been intended to influence, and must have actually influenced the conduct of the other party. (Muller v. Pondir, 55 N.Y. 325, 334, 335, 14 Am. Rep. 259; Leland v. Isenback, 1 Idaho, 469, 475; James v. Wilder, 25 Minn. 318.)

Lyttleton Price and Arthur Brown, for Respondents.

When there is a substantial conflict in the evidence the supreme court will not disturb the decision of the court below. (Hayne on New Trial and Appeal, 234, 288, and cases cited; Doe v. Vallejo, 29 Cal. 390.) The rule is the same where the degree of proof is beyond reasonable doubt as where a preponderance is enough--as in criminal cases. (People v. Ashnauer, 47 Cal. 100; People v. Manning, 48 Cal. 335; People v. Gill, 45 Cal. 285; People v. Simpson, 50 Cal. 304; People v. Montgomery, 53 Cal. 577.) If appellants are not entitled to recover upon their whole case, errors in instructions as to respondents' case will not be regarded. (Enright v. Railroad Co., 33 Cal. 233; Hebrard v. Jefferson Co., 33 Cal. 290; Barth v. Clise, 12 Wall. 401.)

BUCK, J. Hays, C. J., concurring. Broderick J., expressing no opinion.

OPINION

BUCK, J.

On the fourth day of March, 1884, the plaintiffs filed their complaint herein, alleging that they were the owners as tenants in common of certain mining ground in Alturas county, Idaho territory, known as the "Elkhorn lode"; that on the third day of October, 1883, by an agreement in writing, they authorized and licensed defendants Austin and Ervin and one Grant to work and mine, and take and extract, ore from a certain portion thereof, particularly bounded and described in said agreement, upon terms expressed therein; that defendants Austin and Ervin commenced work thereon under said agreement about the third day of October, 1883; that said Grant made a pretended sale of his interest under said agreement to defendant Ross about the said first day of December, 1883, and claims no interest under the same; that plaintiffs Houser, Holton & Hale were nonresidents of this territory, and plaintiff Lewis was absent therefrom during December, 1883, and January, 1884, and that neither of them had any knowledge of the alleged wrongful acts of defendants set out in said complaint; that about December 1, 1883, defendants fraudulently taking advantage of said license to gain admission to said mines without authority or knowledge of plaintiffs, or either of them, wrongfully entered upon a certain portion of said Elkhorn mine outside of the boundaries of the ground described in said agreement, and wrongfully removed pay ore therefrom, of the value of $ 10,000; that the portion of ground so wrongfully entered upon by defendants is very rich in mineral-bearing ore, and defendants threaten to continue their said trespass to plaintiffs' irreparable injury, and plaintiffs believe they will so do unless restrained by order of the court; that soon after plaintiff Lewis returned to the territory he notified defendants to desist from said trespass, and they refuse so to do; and that defendants are insolvent; and pray that defendants may be enjoined from entering upon such portion of said Elkhorn mine as is outside of the boundaries set out in their said agreement, and for general relief.

The defendants, answering, deny the trespass, and allege the verbal agreement or contract existing prior to the written one set out in the complaint including the ground in controversy; that the written agreement was intended to contain the same, and that the plaintiff Lewis fraudulently informed them that it did contain the same; that he put them in possession of the same, and received the two-fifths of the ore extracted therefrom as per condition of the written agreement; and that defendants accepted said agreement believing that it included the mining ground in dispute. Defendants also file a cross-complaint, alleging that they received said agreement believing and understanding that it contained the ground in dispute; that the plaintiffs so represented to them falsely, and that they relied on said representation. They further allege, among other matters, that they entered upon said premises under said agreement, and discovered a rich body of ore thereon of the value of $ 200,000, which they were prevented from extracting by plaintiffs' injunction herein; that plaintiffs had extracted the same and appropriated the same to their use, and that in consequence of said injunction restraining them from working said ore, they had been put to additional expense in the amount of $ 2,000, in opening other ore bodies under said agreement; and prayed that said agreement might be so reformed as to include the ground in dispute; that they (defendants) be adjudged owners, and entitled to all the said Elkhorn lode on the dip thereof having its apex within the premises described in said agreement, and the right to mine and remove the same, and for other and equitable relief.

The plaintiffs, answering, deny the material allegations in the amended cross-complaint, and ask that it be dismissed, at defendants' costs, and for further and equitable relief.

Upon the trial of the case a jury was requested by the defendants to try the cause, and, under objection of plaintiffs, the court impaneled a jury, and of his own motion submitted to them the following special questions: "Q. 1. Did the lessees in the lease, or defendants, enter upon the premises in dispute, and mine and extract ore, with the knowledge consent, and by authority of plaintiff Lewis, or did they enter without his knowledge, consent, or acquiescence? A. They entered and extracted ore with his knowledge, consent, and acquiescence. Q. 2. Did the plaintiffs, or either of them, by themselves or their agents, receive or retain the two-fifths royalty knowing that the ore was extracted by the defendants and Grant from the premises in dispute? A. They did receive it knowing it to be from the ground in dispute. Q. 3. Did the original verbal agreement for the lease include the premises in dispute, viz., all ground northeast of the east tunnel, and was it omitted from the writing either by mutual mistake or fraud of the plaintiffs? A. It did, and was omitted by mutual mistake. . . . Q. 5. What is the value of the ore the three defendants could have extracted between date of service of injunction, March 8, 1884, and July 1, 1884? A. $ 53,160. Q. 6. And what was the extra damage by being driven out, and compelled to drive new tunnels to reach ore? A. $ 1,500." To the admission of the last two questions, to wit, 5...