Kepner v. Stillman

• Decision Date: 16 July 1920
• Docket Number: No. 21240.,21240.
• Parties: KEPNER v. STILLMAM.
• Court: Missouri Supreme Court

224 S.W. 321

KEPNER v. STILLMAM.

No. 21240.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Motion for Rehearing Denied September 15, 1920.

Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.

Action by W. L. Kepner against George T. Stillman. Judgment for plaintiff, and defendant appeals. Affirmed.

Marcy K. Brown, of Kansas City, John L. McNatt, of Joplin, and Marcy K. Brown, Jr., of Kansas City, for appellant.

H. W. Currey and Paul E. Bradley, both of Joplin, and Leslie J. Lyons, of Kansas City (E. E. Sapp, of Galena, Kan., of counsel), for respondent.

WHITE, C.

The amended petition on which this cause was tried sets up that the plaintiff had for many years lived in the mining district of Missouri, Kansas, and Oklahoma, and had acquired valuable knowledge and familiarity with mining and mining operations in the mining district. The petition then proceeds as follows:

"That on the ____ day of May, 1917, the plaintiff and defendant entered into an agreement of joint adventure, whereby it was agreed that they would acquire interests in and leases on mining lands in the Missouri-Kansas-Oklahoma mining district, and that the plaintiff should find the land on which they would acquire leases and inform the defendant thereof, and that they would share in the said mining interests and leases and all the profits arising therefrom in the proportional share of one-half each to plaintiff and defendant; that pursuant to the understanding and agreement between the plaintiff and defendant, as aforesaid, the plaintiff and defendant examined several mining properties (the defendant relying upon the judgment of the plaintiff), which were not acquired by them, because the plaintiff believed and informed the defendant that such properties, so examined, would not be profitable; but that on the 20th of May, 1917, it was brought to the notice and knowledge of the plaintiff, and the plaintiff informed the defendant, that they could acquire a mining lease on about 30 acres of land in Jasper county, Mo., being the south half of the north half of fractional section 15, township 29; range 34, and plaintiff and defendant examined the said property together, and agreed together, that they would acquire a lease on said property; and the plaintiff, for himself and defendant, contracted for a mining lease on said land, and thereafter did acquire a mining lease on said property with a royalty of 10 per cent., the said lease being taken in the name of the defendant.

"Plaintiff avers that, in acquiring the said lease, they were required to pay, to obtain the same, the sum of $750, which amount was advanced and paid by the defendant, pursuant to the understanding and agreement between the plaintiff and defendant; that after the taking of the said lease the plaintiff and defendant took possession of said leased land and hired a drill man to begin drilling for ore thereon, and ever since have prospected said property by means of drilling; that by said drilling large bodies of ore have been discovered; that said lease has become of great value, to wit, about $50,000; that after discovering ore on said property the defendant wrongfully, and contrary to the agreement between the plaintiff and defendant, declared and still declares that he took said land for his own benefit, and has been, and now is, excluding the plaintiff as an owner having an interest with the defendant in said property, and the said Stillman has and is appropriating the said property to his own individual benefit, and has excluded this plaintiff from any participation in said property, and denies plaintiff's right and claim to any interest in said property; but plaintiff avers the facts to be that he is in equity and good conscience the owner of one-half interest in said mining lease.

"Plaintiff avers that such denial of plaintiff's right and interest in the said property is in fraud of the plaintiff's rights under the contract and agreement between the plaintiff and defendant, and that the defendant intends to deprive this plaintiff of his said rights and just interest in said property.

"Plaintiff avers that he has demanded of the defendant that he convey to him, by proper instruments in writing, his interest in said property, or that he acknowledge and concede that he holds such interest in trust for this plaintiff. All of which the said defendant has denied the plaintiff.

"Wherefore plaintiff prays the court to find and adjudge that the defendant took and received the aforesaid lease for the use and benefit of himself and this plaintiff, pursuant to a joint venture between the plaintiff and defendant; that the defendant wrongfully and fraudulently excludes the plaintiff from his one-half interest in the said lease and the profits to be made in mining under same; that the court find and adjudge that plaintiff is entitled to one-half of the profits which may result from any sale or disposition of said mining lease, as well as profits from mining the same; that the court find and adjudge that the acts of the defendant in excluding the plaintiff from a one-half interest in said mining lease, and denying his interest in said enterprise, was and is wrongful, and that by reason of such wrongful acts a constructive trust in said lease exists in plaintiff's favor, and adjudge such trust in plaintiff's favor; and plaintiff prays for such other and further relief as to the court may seem just and proper under the facts herein averred and the evidence produced at the trial, and the plaintiff have and recover his costs."

The answer was a general denial. The trial court heard the evidence and rendered a decree in accordance with the prayer of the petition. The defendant appealed to this court.

In his abstract of the record appellant states the evidence taken at the trial...