Mack v. Mack

• Decision Date: 18 July 1905
• Citation: 39 Wash. 190,81 P. 707
• Parties: MACK v. MACK et al.
• Court: Washington Supreme Court

81 P. 707

39 Wash. 190

MACK v. MACK et al.

Supreme Court of Washington

July 18, 1905

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Robert Mack against John Mack and others. From a judgment for defendants, plaintiff appeals. Reversed.

Kirkpatrick Price & Carver and Barnes & Latimer, for appellant.

Danson & Huneke, for respondents.

CROW J.

This action, brought by appellant, Robert Mack, against respondents, John Mack, W. J. Morrison, the Athelstan Gold &amp Copper Mining Company, Limited, and C. S. Slawson, was originally instituted in the superior court of King county later transferred to Spokane county, and there tried upon the issues joined. The original complaint was so amended as to correct the name of the mining company, in which an error had been made, and to bring in C. S. Slawson as defendant. Pending the action, restraining orders were made and served upon said W. J. Morrison, individually and as secretary of the corporation, and upon said John Mack and C. S. Slawson, to prevent the sale or transfer of certain mining stock hereinafter mentioned. Upon trial the superior court, without making findings of fact or conclusions of law, dissolved said restraining order, dismissed the action, and entered judgment against appellant. From said final judgment this appeal has been taken.

The vital questions involved on this appeal are purely questions of fact. This being an action in equity, it is now before us for examination de novo, and determination upon the entire record. The trial court having failed to make any findings of fact or conclusions of law, there is nothing before us to disclose the principles upon which the final judgment was entered, and we are now compelled to decide all questions of fact and weigh conflicting evidence without deriving any benefit from expressed views or findings of the trial court. As the conclusions at which we arrive do not agree with those of the honorable and learned trial judge, we find ourselves, in the absence of findings of fact or conclusions of law, unable to understand the theory upon which the action was dismissed. From the nature of defenses made, however, we conclude it must have been on some question of law, rather than one of fact.

Having carefully examined the pleadings and evidence, upon consideration thereof, we find the facts to be, in brief, as follows: That appellant, Robert Mack, the respondent John Mack, and one William Mack are brothers. That during the year 1893, and for some time thereafter, Robert Mack and John Mack were locating mining claims in British Columbia, under an agreement whereby John was to defray all expenses, or do the 'grubstaking,' while Robert was to locate the claims which they were to own share and share alike. Under this agreement a number of claims were located in the years 1893 and 1894. Afterwards, in the year 1896, John Mack, the respondent, went from Spokane to British Columbia, not for the primary purpose of locating additional claims, but for the purpose of having assessment work done on various properties owned by him in that locality. Before leaving Spokane he, in conversation with Robert Mack, agreed that, if he located any additional ground on his trip, the same was to be located for himself and appellant. While in British Columbia he had an interview with one William J. Porter, in which he requested said Porter to show him some valuable ground. Thereupon Porter agreed to do so, provided respondent would locate the same not only for respondent himself, but also for his brother Robert Mack. To this respondent assented, and thereupon Porter showed him certain ground, and assisted him in locating the Athelstan claim, now in dispute in this action. The location was made in the name of John Mack, and the claim continued at all times to stand in his name, except as hereinafter stated. No particular work was done upon said claim by respondent at the time of its location, but in 1897 it became necessary to do the assessment work, and it was also deemed advisable to do further work for the purpose of development. About this time Will Mack came from Indiana to Spokane, Wash., with the intention of going to British Columbia with his brother, the appellant, Robert Mack, and assisting in doing assessment and development work on the Athelstan claim, with the understanding that he was to be paid going wages by John Mack for his services. Robert and Will procured an outfit, and proceeded from Spokane to British Columbia, did the assessment work, also did a large amount of development work, and discovered a good ore body, showing the property to be very valuable. While they were on the claim the respondent John Mack visited them for two or three days, and entered into a contract by which it was stipulated that the claim should be owned one-third by himself, one-third by Robert, and one-third by Will; the development work then in progress to be done by Will and Robert, without further compensation than their actual expense, or grub-stake, which was to be furnished by John. After the development work had been done by Robert and Will, the claim by reason thereof showed sufficient value to enable respondent John to bond it to the partnership firm of Crane & Loring, who were to pay $15,000 for it in the event they took up the bond. Crane & Loring did in the year 1898 pay $1,500 upon this bond to the respondent John, who immediately paid $500 to Robert and $500 to Will. After this payment of $1,500 had been made by Crane & Loring, the bond was forfeited by them, and the claim reverted to respondent John Mack. Some time during the year 1900 the respondent John effected a sale of the claim to the Athelstan Gold & Copper Mining Company, Limited, for $3,000 cash, and 350,000 shares of the paid-up capital stock of said company. Immediately thereafter John paid $1,000 of said sum to the appellant, Robert, $1,000 to Will, and retained the remaining $1,000 himself. About the same time he wrote separate letters to Will and Robert, in which he, in substance, stated that he held in his own name, in trust, in order that he might handle the same, said 350,000 shares of stock, one-third thereof for Robert, and one-third for Will. About this time it seems to have been agreed between the three brothers that 50,000 shares of the stock were to be held for their father, leaving 300,000 shares...