Kirchner v. Smith
| Citation | 58 S.E. 614,61 W.Va. 434 |
| Parties | KIRCHNER v. SMITH et al. [*] |
| Decision Date | 05 February 1907 |
| Court | Supreme Court of West Virginia |
Submitted June 8, 1906.
Syllabus by the Court.
If two or more owners of a mine unite in working it, without any partnership agreement, the act of working it together creates a mining partnership; and the same is true of two or more holding interests in a lease of mining property.
[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, § 222.]
In a chancery suit for contribution against his copartners by a partner in a mining partnership for money he has paid for such partnership, when he had recovered against them individually certain sums in proportion to their respective interest in the partnership, it is not error to retain the cause on the docket for further decrees against defendants for contribution in case plaintiff should fail to make on execution or otherwise the several amounts so recovered.
All facts having rational probative value are admissible, unless some specific rule forbids.
If a party wishes to rely upon an exception to a deposition, he must bring it to the attention of the trial court, so that it may be acted on; and, unless the record shows that this has been done, it will be by the appellate court deemed to have been waived.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2295-2299.]
An attorney employed by two or more persons to give professional advice or assistance in a matter in which they are mutually interested can, on litigation subsequently arising between such person or their representatives, be examined as a witness, at the instance of either, as to communications made when he was acting as attorney for all, although he could not disclose such communications in a controversy between his clients, or either of them, and third persons.
[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses § 750.]
Syl. point 8 in Hefflebower v. Detrick, 27 W.Va. 16, and Syl. point 3 in Trust Co. v. McClellan, 40 W.Va. 405, 21 S.E. 1025, approved and applied.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 356.]
A decree will not be reversed for want of replication to an answer, where the defendant has taken depositions as if there had been a replication.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 1389.]
Appeal from Circuit Court, Tyler County.
Bill by W. E. Kirchner against L. E. Smith and others. Decree for plaintiff, and defendants appeal. Affirmed.
J. V. Blair, Caldwell & Caldwell, Pugh & Pugh, and H. P. Camden, for appellants.
B. Engle, J. H. Strickling, and C. R. Riggle, for appellee.
On the 8th day of April, 1890, Junius A. McCormick and others assigned and transferred to L. E. Smith certain oil and gas leases described in the paper assigning the same. On the 15th day of September, 1892, the said L. E. Smith assigned the same to a corporation known as "Owls Head Oil Company." Both of the above-mentioned assignments were duly acknowledged and recorded in the county clerk's office of Tyler county. Afterwards the Owls Head Oil Company became involved, and its effects were levied upon under an execution issued upon a judgment rendered against said corporation, and sold by a constable, at which sale Frank P McNell became the purchaser, and took from the constable, St. Myers, of Ohio county, a bill of sale of said effects; and on the 9th day of April, 1894, the said McNell sold and transferred all the property of the said Owls Head Oil Company so purchased at the constable's sale to L. E. Smith, C. H. Taney, T. M. Darrah, C. F. Kotzebue (now represented by Mary E. Matthews, late Kotzebue), J. A. Burgbacher, A. J. Jameson, J. S. Pierpoint, R. A. Martin, John Stealey, and W. E. Kirchner, all of whom were stockholders in the said Owls Head Oil Company, and holding together 120 shares of stock in the proportions shown in the record. None of the other stockholders in said Owls Head Oil Company participated in the purchase; those named as the purchasers buying for themselves alone. In said purchase were included the various oil and gas leases so transferred to the Owls Head Oil Company by the said L. E. Smith. The purchasers of said property held the same in the proportions in which they had held stock in the said corporation. Among the leases so purchased and held by them was one of July 31, 1889, for a tract of 104 acres, more or less, made by W. S. Lawson, one of August 2, 1889, made by David Hickman on a tract of 100 acres, more or less, and also one of August 6, 1889, made by E. P. Snyder on a tract of 105 acres, more or less, which leases were taken by William Johnson, who assigned an interest therein to the said McCormick and others, assignors of said L. E. Smith. On the 13th of May, 1895, at a meeting of all the said 10 parties composing the said mining partnership, excepting John Stealey, who was not present, the said partnership entered into a contract with C. P. Tustin, guardian of Harvey Lawson, Ella Lawson, Maggie Lawson, James Lawson, and Calvin Lawson, infant children of W. S. Lawson, deceased, and Nathan Lawson, Ida Railing, and Milroy Railing, her husband, of the county of Tyler, as parties of the first part, with W. E. Kirchner, one of the said partners, of the second part, whereby, in consideration of the sum of $2,500 cash and of the covenants and agreements made to the party of the second part for a lease, for the purpose of operating and drilling for gas and oil, of a tract of 96 acres of land. Under the agreement the party of the second part was to hold the premises for and during the term of two years from the date of the lease, and so long thereafter as oil or gas was produced in paying quantities or rentals paid thereon. The usual one-eighth part of the oil was to be given to the lessors, and $300 per annum for each gas well the products of which was utilized off the premises; said lease to become null and void and all rights thereunder cease unless a well should be completed by the party of the second part within one year from the date of the lease, and the party of the second part to pay the other parties at the rate of $2.50 per acre per month in advance from the date of the lease until a well should be completed on the premises, and containing a further provision that the second party, his heirs or assigns, should have the right to at any time surrender up the lease, from which time it should be null and void and no longer binding on either party, and that all conditions between the parties should be extended to their heirs and assigns.
On the 16th day of August, 1895, the said L. E. Smith, W. E. Kirchner, in his own right and as administrator of C. F. Kotzebue, T. M. Darrah, C. H. Taney, J. A. Burgbacher, A. J. Jameson, J. S. Pierpoint, R. A. Martin, and John Stealey (the latter mentioned in the body of the paper, but which was not signed or executed by him), in consideration of $2,500 paid, granted, assigned, and set over to the Carter Oil Company, its successors and assigns, "all their interest in and to all the leases and contracts on and affecting the W. S. Lawson farm of 96 acres in Meade district, Tyler county, West Virginia"-followed by a general description of the land-"including an old Johnson lease on the premises and a lease from C. P. Tustin, administrator of the estate of W. S. Lawson, deceased, and guardian of the minor heirs, and the two major heirs, and a contract with B. Forst to complete a well on the premises without cost to the second party."
On the 16th of August, 1895, C. P. Tustin, guardian, filed his petition in a summary proceeding in the circuit court of Tyler county to sell the interests of the infants in pursuance of said contract, and on the 19th of August, 1895, procured a decree from said court to sell the same to said Kirchner, under which decree the said Tustin, as guardian, conveyed the seven-eights of the oil and the gas to the said Kirchner on the 20th of August, 1895; but from the decree and deed made thereunder the provision in the contract of May 13, 1895, of the right of surrender of the said lease by the lessee at any time was left out. At the end of two years from the date of the contract for lease, the infants, by their next friend, and the adult heirs of W. S. Lawson, brought their action of assumpsit against Kirchner in the circuit court of Tyler county for the rents accruing under the said contract, and obtained judgment for the said rents, amounting in all to, including interest and costs, $5,667.48, which judgment was affirmed by this court upon writ of error obtained by the said Kirchner.
At the March rules, 1902, Kirchner filed his bill in equity against the parties interested in said contract for lease at the time it was taken, alleging that they composed at the time a mining partnership, and took the lease as such partners, and that he held the same for himself and them in trust, and prayed that the said defendants be required to answer; that plaintiff might have an accounting of said partnership business and affairs, and that the cause be referred to a commissioner for that purpose; that upon the coming in of the report of said commissioner a decree might be rendered in his favor against the mining partnership for the amount of all moneys found to have been expended by him on account of said judgment, interest, costs, attorney's fees, and expenses in said action of assumpsit and appeal, together with whatever balance of the judgment and interest accrued and accruing thereon that he might be liable to pay; that said mining partnership be dissolved; and for further and general relief. The defendants Smith, Taney, and Darrah, at the April term, 1902, filed their demurrer t...
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