Jones v. Wilder

• Citation: 28 Minn. 238,9 N.W. 707
• Parties: JONES AND ANOTHER v WILDER, IMPLEADED, ETC.
• Decision Date: 05 August 1881
• Court: Minnesota Supreme Court

28 Minn. 238

9 N.W. 707

JONES AND ANOTHERvWILDER, IMPLEADED, ETC.

Supreme Court of Minnesota.

Filed August 5, 1881.

Appeal from judgment of district court, county of Ramsey.

Davis, O'Brien & Wilson, for appellants.

Harvey Officer, for respondent.

MITCHELL, J.

Appeal by plaintiffs from a judgment in favor of defendant Wilder. The complaint in this action is in substance as follows: That the plaintiffs and defendants were part owners of the steam-boats General Meade, Peninah, and Fontenelle, the plaintiffs being the equitable owners of two-fifths of each of the two first-named and of one-fifth of the last-named boats; that the legal title to the whole was in the defendants jointly, who, however, had for a valuable consideration covenanted and agreed with plaintiffs to hold in trust, and did hold in trust, for plaintiffs their aforesaid shares or interest sin the steam-boats named; that, being such joint owners, all parties agreed as partners to engage in the business of transporting freight and passengerswith said boats, and to use and operate them in such business, the profits and losses to be shared in by all parties in proportion to their respective shares in the boats; that under this arrangement such business was carried on during the navigation seasons of 1876-1877-1878, after which the defendants sold and disposed of their interests in the said boats; that the business was under the entire management and control of defendants, who kept the books, and received and disbursed all moneys; that large profits were earned in said business during each of said years; that plaintiffs and defendants had a full accounting and settlement of the business for the year 1876, but that defendants have failed to account to plaintiffs for their share of the profits for the years 1877 and 1878, except the sum of $12,000. They ask for an accounting, etc., concerning the business of those two years.

The answer of defendant Wilder is so voluminous and discursive that it is not entirely clear what was the theory of the pleader. But, as we underderstand it, he in substance admits that he and Charles purchased an undivided six-tenths and no greater interest in the vessels named, although admitting that the title to the entire property was conveyed to them jointly. He also denies any joint ownership by the plaintiffs with him either in law or equity, or that he ever contracted with them in relation to their interests in the vessels, as partner, trustee, or otherwise; and while admitting that the vessels were, in fact, used in the transportation business during the years named, denies they were so used for the joint benefit of defendants and plaintiffs, or that there was any agreement between him and plaintiffs to that effect; that if plaintiffs had any interest in the boats it was held in trust for them by defendant Charles alone, but if so, that he never had anything to do with it, or consented to it, but the same was the individual transaction of Charles. He also denies the receipt of any moneys by him during the continuance of the business of operating said boats; denies that plaintiffs and defendants ever had any accounting of the business of 1876; admits that he has failed to account to them for the business of 1877 and 1878; but denies that they were entitled to any share of this business, or that he ever paid them any money whatever on account of the business of any of the three years named, or that any profits were earned either in the years 1877 or 1878.

To this answer plaintiffs interposed a reply. Inasmuch as this appeal is taken only from the judgment in favor of defendant Wilder, it is unnecessary to refer to the answer of defendant Charles. Upon the trial of the action the court made and filed its findings as follows:

“On the seventh day of September, 1876, at St. Louis, defendants purchased through William J. Kountz, who had control thereof and power to sell, six-tenths (6-10) of a certain steam-boat known as the General Meade, with its engines, tackle, apparel, and furniture; six-tenths (6-10) of the steam-boat known as the Peninah, with its engines, tackle, apparel, and furniture; and six-tenths (6-10) of the steamboat known as the Fontinelle, with its engines, tackle, apparel, and furniture; and at the same time the plaintiffs, through the agency of said William J. Kountz, became the owners of four-tenths (4-10) of said steam-boats General Meade and Peninah, and two-tenths (2-10) of the steam-boat Fontinelle, and their said appurtenances.

“At the same time, and as part of the same transaction, it was mutually agreed between plaintiffs, acting through said William J. Kountz, and defendant, that for the interest of all concerned the conveyances from the former owners should be made to defendants only, and that defendants should be vested nominally with the entire title to said boats; and accordingly conveyances were then and there made by said owners, by which, in terms, the title to said boats was vested in said defendants,-that is to say, one-half thereof in said Wilder and one-half thereof in said Charles,-but it was understood that plaintiffs in fact retained and owned their interests aforesaid. The said boats had been theretofore used in navigating the Mississippi and Missouri rivers and their tributaries, and were of great value, and it was mutually agreed at the time aforesaid that said boats should thereafter be operated by defendants,-the said steam-boats General Meade and Peninah for the benefit of said defendants and plaintiffs, and said steam-boat Fontinelle for the benefit of said defendants and plaintiffs and one Braithwaite, who was the owner of two-tenths (2-10) thereof, according to their respective interests aforesaid; and that defendants should have control of said boats and should manage said business, and that plaintiffs and their said interests should be represented therein by said Charles; and as a part of said transaction said Charles executed and delivered to plaintiffs in writing an instrument in the following terms:

“‘ST. LOUIS, September 7, 1876.

“‘I, the undersigned, agree to hold in trust for Carrie V. Kountz and Katie P. Kountz, two-fifths interest of str. General Meade, two-fifths interest of str. Peninah, one-fifth interest of str. Fontinelle. JOHN H. CHARLES.’

“Thereafter, and during the seasons of 1876, 1877, and 1878, defendants operated said boats upon the Missouri river and its tributaries, in the business of carrying freight and passengers. They had the entire management of said boats, and the control of said business. Said Charles, acting for himself and for said plaintiffs and said Wilder, received and disbursed the money of said business and kept the accounts, and the books, papers, and vouchers pertaining to said business are in the hands of said Wilder, together with such funds as have not been paid out in conducting said business, or divided among the owners of said boats. Plaintiffs, through William J. Kountz aforesaid, who has been at all times their duly-authorized agent in all matters relating to said business and to said boats, have had access, as they desired, to the said accounts and vouchers, and have examined the same.

“At the close of business for the season of 1876 the defendants had an accounting together, and stated an account of the business of the year, the net profits of which business were the sum of $14,312.06, whereof three-tenths were retained by said Wilder, and the remainder paid over by him to said Charles, who accounted for and paid to said plaintiffs their just proportion thereof. After the close of business for the year 1877 the defendants had a settlement with each other of the business of that year, and stated an account between them of said business, and it was agreed by them that the profits of the business for that year amounted to $30,562.50. Said Wilder drew three-tenths thereof. Prior to said...