Lesamis v. Greenberg

• Decision Date: 09 August 1915
• Docket Number: 2514.
• Citation: 225 F. 449
• Parties: LESAMIS et al. v. GREENBERG.
• Court: U.S. Court of Appeals — Ninth Circuit

225 F. 449

LESAMIS et al. v. GREENBERG.

No. 2514.

United States Court of Appeals, Ninth Circuit.

August 9, 1915

O. D Cochran and G. J. Lomen, both of Nome, Alaska, and Thomas R White, of San Francisco, Cal., for appellants.

William A. Gilmore, of Seattle, Wash., for appellee.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This is a suit instituted by appellee for dissolution of a mining partnership and an accounting.

On March 19, 1910, Jack Lesamis, John Tyapay, Andy Garbin, and the appellee Greenberg entered into an agreement of copartnership, whereby it was stipulated that:

'H Greenberg is, and shall be a full-fledged partner with the above-mentioned parties (Lesamis, Tyapay and Garbin), and have one-quarter undivided interest in all claims, lodes, water rights acquired or to be acquired and owned by the above-mentioned parties. It is further agreed that H. Greenberg is to furnish the above-mentioned parties with provisions from time to time up to July, 1910.'

On the same day Tyapay, Garbin, and Lesamis executed a deed to Greenberg for an undivided one-fourth of all the mining properties then held by them, the consideration being $30,000; 'six thousand dollars ($6,000.00) in lawful money of the United States of America to them in hand paid by said party of the second part (Greenberg), the receipt whereof is hereby acknowledged, and the balance of twenty-four thousand to be paid of the first money taken out of the ground. ' The partnership was called 'Klery Creek Mining Company.' The parties commenced mining operations at once, and, plaintiff alleges, continued until the fall of 1911, when a disagreement arose; hence the suit to dissolve the partnership.

On September 2, 1911, Garbin transferred and assigned to the defendant Stanley all his interest in the mining claims and in the partnership assets, and on the same day Lesamis likewise transferred and assigned all his interest in said claims and assets to Sam Sallo. In a separate answer Stanley and Sallo claim the respective shares and demands of Garbin and Lesamis in the partnership assets.

After a full hearing and trial upon the merits of the cause, the court made findings, and, among other things, found that the mining claims were put into the partnership, and became and were partnership assets, and that the Klery Creek Mining Company operated the mines from March 19, 1910, to September 1, 1911, but that on the latter date the parties disagreed and were unable to carry on their business together longer; that Stanley and Sallo took, and now hold, whatever interest they have in the partnership property and assets with full knowledge of the business conditions of the partnership; that they so hold such property and demands in trust for the defendants Garbin and Lesamis, respectively; that the total gold production for 1910 of the Klery Creek Mining Company was $16,251.42, and the total for 1911 was $9,786.88; that the total indebtedness of the company due to Robinson, Magids & Co., or its assignee, Philip Murphy, was the sum of $19,314.94; and that the parties were indebted to the mining company in sums as follows, respectively: Lesamis $4,429.21, Tyapay $4,703.21, Garbin $4,215.40, Greenberg $5,967.10--the court holding that the $24,000 deferred payment was payable from the net profits of the mining operations, and not from Greenberg's one-fourth interest therein.

A decree was entered in pursuance of these findings.

The appellants insist, in the first place, that the court erred in its interpretation of the contract of sale, or the conveyance of the undivided one-fourth interest in the mining claims to the appellee, relative to the manner of payment of the $24,000 deferred payment as part consideration for the conveyance. The stipulation is that such balance is 'to be paid of the first money taken out of the ground. ' The District Court was induced, by reason of the acts of the parties and their seeming construction of the paper, to hold that such balance of the purchase price was to be paid from the net proceeds of the mining claims, which means that all the net product of the mines was to be applied in discharge of such balance. It must be conceded that the stipulation does not so read. It is plain that the payment does not become due until the money is taken out of the ground, and by reason of the contingency, might never mature. But the controlling idea respecting the construction of the paper is that Greenberg was purchasing a one-fourth interest only, and was to pay $30,000 for that interest, $6,000 of which he paid in cash. The balance he was to pay when the money was taken out of the ground; not he and his partners, nor the firm. He could pay that, therefore, only out of his interest in the money taken out of the ground. Otherwise his partners would be contributing three-fourths of the money to pay his obligation to them. This could not have been intended, and the contract is susceptible of no such construction. Of course, the manner of the parties' treatment of the contract and its stipulations is often an aid to construction of the instrument, where the terms are ambiguous...