Lawlor v. Kemper

• Decision Date: 14 June 1897
• Citation: 49 P. 398,20 Mont. 13
• Parties: LAWLOR v. KEMPER.
• Court: Montana Supreme Court

49 P. 398

20 Mont. 13

LAWLOR v. KEMPER.

Supreme Court of Montana

June 14, 1897

Appeal from district court, Silver Bow county; W. O. Speer, Judge.

Action by William V. Lawlor against Simeon V. Kemper. From an order denying a motion for a new trial, defendant appeals. Affirmed.

During the year 1891 and a portion of 1892, plaintiff, Lawlor, and defendant, Kemper, were partners dealing in real estate in Butte, Mont., under the name of Kemper & Lawlor. The written agreement of partnership between them provided "that all gains, profits, and increase that shall or may come, grow, or arise from or by means of said business shall be divided between them share and share alike." It also provided "that at all times during their co-partnership they, and each of them, will give their attendance, and do their, and each of their, best endeavors, and to the utmost of their skill and power exert themselves for their joint interest profit, and advantage." The firm dealt chiefly in town lots which one or the other of its members owned individually, or to which the two jointly had acquired title. When a lot owned by one of them was disposed of, a commission on the selling price was credited to the firm as a profit. Each owned individually some mining ground. As a firm, also they acquired some mining property, not for the express purpose of dealing in any ores to be extracted therefrom, but rather for the sake of the surface ground of the same for townlot purposes. At the time they entered into the partnership, Kemper owned a tract of land known as the "Kemper Addition." It was a patented placer claim originally. There being indications of a quartz vein within its boundaries, Kemper had made a location on the quartz therein as the Ground Squirrel lode claim. He did this to prevent any possible question being raised as to the extent of the placer patent. The persons interested in this lode claim were Kemper, his brother, and their father and mother the latter two, however, to a small extent only. Kemper had full authority from his brother and parents to deal with this lode claim as he saw fit. Before the time agreed upon for the beginning of the partnership between Kemper and Lawlor, a contract had been entered into between the owners of the lode claim and one Carter, under the terms of which Carter had acquired the right to purchase within a certain time a certain portion of the claim for the sum of $15,000. After the partnership began, and during its existence, lots were sold in this Kemper addition, and commissions on the sales thereof credited to the firm as profits. It appears that Carter, under his contract, proceeded (with moneys furnished by Kemper alone) to develop this lode claim, and as a result it was demonstrated during the year 1891 that it contained a mine of rich copper ore. Some time in June, 1891, Kemper sold this mine and certain lots in the Kemper addition for $225,000. This price included the $15,000 to be paid by Carter under his contract. This money was paid in installments; the last payment being made some time in July 1892. The negotiations for the sale of the lode claim consumed a number of days, and, for the most part, were had in the realestate office of Kemper & Lawlor. After some $62,000 in payments were made, on December 26th, Kemper and Lawlor had a monthly settlement of the partnership accounts. At this last-mentioned date nothing was said about Lawlor's right to a part of any commission on the sale of the Ground Squirrel claim, although he (Lawlor), knew what amount of the purchase price thereof had been paid. Another such settlement was had in March, 1892, and the books of the firm contained this memorandum, in Kemper's handwriting "March 18th, '92. Settled in full to date." At the times of said settlements there was no entry in said books as to the Ground Squirrel lode. Lawlor at the date of said last settlement paid Kemper a balance of $228.40. The December settlement was made before any demand by Lawlor for a commission on account of the Ground Squirrel sale, and the March settlement after such demand. Kemper refused to credit Lawlor or the firm with any commission on the Ground Squirrel lode sale. Thereupon Lawlor instituted suit against Kemper on June 18, 1892. The complaint contained the following allegations: "That on or about the 7th day of April, A. D. 1890, plaintiff and defendant, at Butte, in the county of Silver Bow, state of Montana, entered into and formed a partnership for the buying and selling of real estate and loaning money, and as general estate agents, under the firm name and style of Kemper & Lawlor, and under certain articles of agreement, a copy of which is hereto annexed, marked 'Exhibit A,' and made part of this complaint, and that they thereafter, on said January 1, 1891, entered upon and commenced to transact the business of such co-partnership under their firm name; that under the terms of the said agreement each partner was to account to the firm for all receipts and commissions on all transactions of every nature, and for all loans or sales made by either of them, be the same collected from sale of their own individual property, or in their transactions for others; that since the commencement of said co-partnership the defendant has wrongfully, and without the assent of the plaintiff, applied some of the money or receipts and profits of their business to his own use, and has refused to account for the same to the plaintiff, and by reason thereof has become indebted to said co-partnership, and impeded and injured...