Mackey v. Magnon

• Decision Date: 10 October 1898
• Citation: 54 P. 907,12 Colo.App. 137
• Parties: MACKEY v. MAGNON.
• Court: Colorado Court of Appeals

54 P. 907

12 Colo.App. 137

MACKEY v. MAGNON.

Court of Appeals of Colorado

October 10, 1898

Error to district court, El Paso county.

Action by A.P. Mackey against Arthur U. Magnon for a resettlement of partnership accounts and for a conveyance of assets. From a judgment for plaintiff finding a balance due and refusing to compel the conveyances, he brings error. Affirmed.

T.M.S Rhett, for plaintiff in error.

THOMSON, P.J.

The plaintiff in error was plaintiff, and the defendant in error defendant, below. Both parties were residents of Aspen, Colo. The complaint alleged an agreement of partnership between the plaintiff and the defendant, about April 30, 1894, whereby the plaintiff should proceed to Cripple Creek, Colo., and procure interests in mining claims, by bond, option contract, or purchase, and the defendant should undertake, at his own expense, to dispose of such interests at Chicago Ill., the parties to share equally the profits realized and the losses incurred in the transaction. The complaint also averred that the plaintiff, in accordance with the agreement, at considerable expense to himself, went to Cripple Creek, about the 4th day of May, 1894, and acquired interests, by option and contract, and also by purchase, in a number of mining properties; that, at the time of the agreement, the defendant was the owner of an undivided one-eighth interest in the Mountain Boy lode, in the Cripple Creek district, and agreed that this interest should be part of the partnership assets, and go in with the others at the price of $600, subject to the same agreement concerning profits and losses; that the plaintiff, among other interests acquired in Cripple Creek, purchased an undivided one-third interest in the Little Maggie lode, and that some time after his return the defendant purchased, in behalf of himself and the plaintiff, an additional one-eighth interest in the Mountain Boy lode; that about the 15th day of May, 1894, the parties had a settlement of their accounts, which embraced the expenses of the parties, and the prices paid by them respectively, for the several interests which had been acquired in the Mountain Boy and Little Maggie lodes; that upon this settlement a balance was found to be due from the plaintiff to the defendant of $442, which balance the plaintiff thereupon paid; that at the settlement the defendant falsely and fraudulently represented that the additional one-eighth interest in the Mountain Boy lode had cost him $750, and that in the settlement the plaintiff relied on the representation, but that the sum actually paid for the interest by the defendant was $550, and no more; that although the defendant agreed immediately to take the interests which had been obtained to Chicago, and there dispose of them, he did not do so; that the plaintiff expended other moneys to the amount of $119.70, in connection with the acquirement of the mining interests, and that the value of his time and labor paid out in the business was $400; that the plaintiff had frequently demanded the conveyance to himself of one-eighth of the Mountain Boy lode, and offered to convey to the defendant one-sixth of the Little Maggie lode, but the defendant refused either to convey to the plaintiff any interest in the Mountain Boy, or to accept from him the conveyance of any interest in the Little Maggie. The prayer was that the settlement be set aside, and a true account of costs and expenses taken; that the plaintiff have judgment for a balance which he alleged was owing to him of $619.70; and that the defendant be adjudged to convey to him an undivided one-eighth interest in the Mountain Boy lode.

The answer denied the material averments of the complaint, and set up the following written contract between the plaintiff and the defendant: "This agreement, made and entered into this 16th day of May, A.D.1894, between A.P. Mackey, of the city of Aspen, and Arthur U. Magnon, of the same place witnesseth: That whereas, A.P. Mackey has options to purchase interests in the Mellie Maguire lode, Goldfield lode, Hammond lode, the Granite State lode, Atlantic lode, La Fortuna lode, Murray lode, Andrews Extension lode, and the Mamie lode, all situate, lying, and being in the Cripple Creek mining district, in the county of El Paso, state of Colorado; and whereas, the said A.P. Mackey is the owner of an equal undivided one-third part and interest in the Little Maggie lode, in the same mining district, county, and state; and whereas, the said Arthur U. Magnon is the owner of an equal undivided one-quarter part and interest in the Mountain Boy lode, in the same mining district, county, and state: Now, therefore, it is mutually agreed and understood, by and between the parties hereto, that any profits derived or to be derived on a sale of said properties, or any thereof, shall be equally divided between said parties. And it is hereby further mutually agreed and understood, by and between the parties, that any interests purchased under any of the options hereinabove mentioned each party hereto shall be interested therein equally with the other party, and each party hereto shall furnish and pay one-half of the purchase price of any interest or interests therein. And it is further agreed and understood, by and between the parties, that each party hereto shall use his best efforts in selling said properties at a profit over and above the purchase price named in said options. And it is further agreed and understood that any and all expenses incurred in the obtaining of said options shall be borne equally by the said parties hereto; that by the word 'expenses' is included any moneys advanced in order to procure said options. And the said A.P. Mackey hereby assigns unto the said Arthur U. Magnon an undivided one-half interest in the options to purchase hereinabove specified. In...