Morrow v. Matthew

• Decision Date: 29 December 1904
• Citation: 10 Idaho 423,79 P. 196
• Parties: MORROW v. MATTHEW
• Court: Idaho Supreme Court

79 P. 196

10 Idaho 423

MORROW v. MATTHEW

Supreme Court of Idaho

December 29, 1904

GRUBSTAKE AGREEMENT-MINING CLAIMS-ACTION TO DECLARE LOCATOR TRUSTEE-WEIGHT OF EVIDENCE-EXCEPTION FROM GENERAL RULE.

1. The rule which has been adopted and followed by courts of equity requiring a plaintiff who seeks to establish a trust in real property contrary to the express terms of the deed which vested title in another to make out his case "clearly and satisfactorily beyond a reasonable doubt," does not find the same reason for its application in a case where a party to a "grubstake" agreement invokes the aid of a court of equity in establishing a trust in mining claims located on the public domain by one of the parties to such agreement.

2 ID.-A location notice is not an instrument of like solemnity and dignity as sealed instruments at common law, and in cases seeking to establish a trust is not entitled to protection under the same rules applicable to sealed instruments.

3. The courts will not refuse to enforce a "grubstake" agreement simply because a complainant cannot produce that great preponderance of evidence which produces a moral certainty and precludes all reasonable doubt.

(Syllabus by the court.)

APPEAL from District Court in and for Shoshone County. Honorable Ralph T. Morgan, Judge.

Action to establish a trust in certain mining property acquired under a "grubstake" agreement and to compel a conveyance of the trust interest to the cestui que trust. Judgment for plaintiff and order denying a new trial, from both of which defendants appealed. Affirmed.

Judgment and order affirmed. Costs awarded to respondent.

Robertson Miller & Rosenhaapt and James E. Babb, for Appellants, cite few authorities upon the questions decided not cited in the opinion.

George G. Pickett, W. B. Heyburn, John P. Gray and John B. Goode for Respondent.

Where two or more parties enter into a contract, as they did in this case, one or more of the parties cannot, without notice to the other parties in interest, rescind the same at will. The contract cannot be affirmed in part and rescinded in part. The party wishing to rescind must exercise the right within a reasonable time, and not wait until a rescission will work a great injury to the opposite party. (Chadbourne v. Davis, 9 Colo. 581, 13 P. 721; Mills v. City of Osawatomie, 59 Kan. 463, 53 P. 470; Cole v. Smith, 26 Colo. 506, 58 P. 1086.) Mr. Lindley in his work on Mines, second edition, volume 2, section 858, page 1556, says, speaking of grubstake contracts: "Should the prospector during the life of the contract, locate in his own name to the exclusion of the one supplying the capital, the title thus acquired by him would be held in trust for his associates in the joint venture to the extent of his interest, not necessarily on the theory of partnership, but for the reason that his advances contributed to the acquisition of property." (Meylette v. Brennan, 20 Colo. 242, 38 P. 75.) The law as to what evidence is necessary to support a conveyance under a contract like the one in question has been passed upon by the supreme court in this state in the case of Rice et al. v. Rigley et al., 7 Idaho 115, 61 P. 290; Mayhew v. Burke, 3 Idaho 333, 29 P. 106.

AILSHIE, J., SULLIVAN, J. Sullivan, C. J., Stockslager, C. J., and Ailshie, J., concurring.

OPINION

The facts are stated in the opinion.

AILSHIE, J.

--This action was commenced by the plaintiff, J. A. Morrow, on what is commonly known as a "grubstake" agreement to recover a one-sixth interest in and to the Wild Rose, Albert Edward, Little Annie, Lillian and Chronicle quartz mining claims, and the Wild Rose millsite. The agreement on which the plaintiff claims the right of recovery was in parol. The contract as testified to by plaintiff, and corroborated in many respects by his witnesses, was substantially as follows: About December, 1899, the defendant, Matthew, met with the plaintiff and defendant Ellis at the place where they were engaged at work, and stated to them that he had been prospecting on Quartz creek for several years, and had found nothing worth locating, and that he wanted to change the following year and prospect in another locality. He requested the plaintiff and Ellis to grubstake him for prospecting the following year. After some discussion over the matter it seems that they agreed to do so, and he informed them that it would be about June or July of the following year before he would be ready to leave the Quartz creek country and go over to their section to begin prospecting. Morrow and Ellis agreed to furnish him a cabin, provisions and tools for the work. Matthew stayed over night with Morrow and Ellis and left the following day. The matter ran along until about the latter part of August, or 1st of September, 1900, and in the meanwhile the plaintiff met Matthew frequently, and was as often asked by him if he still intended to carry out the agreement, to which the plaintiff repeatedly replied in the affirmative. Sometime about the last-named date Ellis had a talk with the plaintiff concerning their carrying out the agreement, and they agreed that they would do so, and when Matthew came over in a few days they told him to occupy a cabin of theirs, known as the Dewey cabin, and to use the provisions and tools therein. At that time the plaintiff and Ellis appear to have had a very fair supply of provisions on hand at the Dewey cabin, and on the day Matthew went into this cabin Ellis bought a further small bill of provisions. Matthew occupied the cabin, used the provisions and tools and began prospecting and carried this on from time to time until May or June of the following year. In the meanwhile the plaintiff had furnished him some small additional items, and notified one of the merchants at Pierce City to let him have such things as he needed. A great deal of this evidence is corroborated by other witnesses produced by the plaintiff. On the other hand, the greater portion of it is denied by defendants, Ellis and Matthew and witnesses produced by them. It can serve no useful purpose here to go into a detailed statement of the evidence given by each of the witnesses produced, and we shall not attempt it. During the period covered by this agreement, the defendants acquired interests in each of the claims for which the plaintiff sues to recover the interest claimed by him. After the conclusion of the trial had in this case, the court made his findings of fact and conclusions of law, and rendered and entered judgment in favor of the plaintiff as prayed for in his complaint. After a most careful and thorough examination of the record in this case and the law applicable thereto, we are convinced that the findings of fact as made by the trial judge are sustained by the proofs in the case, and we therefore give them here in full:

"1. That about the first day of September, 1900, the plaintiff and the above-named defendants entered into an agreement whereby, and by the terms of which agreement, the above-named defendant Matthew undertook with the plaintiff and the above-named defendant Ellis that he, the said defendant Matthew, would go into the southern portion of Shoshone county, Idaho and there prospect for mines and when found locate mining claims, subject to location under the laws of the United States and the state of Idaho for the joint use and benefit of this plaintiff and said defendants. That in each and every mining claim so discovered, located or acquired in any manner by said Matthew, by the terms of said agreement, the plaintiff and the said defendants were to be equally interested, whether said defendant Matthew should acquire the said mining claim, or any interest therein, by location, purchase, gift or for services rendered.

"2. That in consideration of the acts and things so to be done by the said Matthew as aforesaid, this plaintiff and the defendant Ellis entered into an agreement with the said Matthew, whereby and by the terms of which agreement this plaintiff and said defendant Ellis were to furnish the said Matthew such supplies, tools and implements and other things of necessity incident to such prospecting, locating and acquiring mining claims, as said Matthew might require in and about the keeping of the said agreement and contract on his part.

"3. That at the time of the making of the said agreement, the plaintiff and the said Ellis furnished the said Matthew with a complete outfit of provisions, supplies, tools and other things necessary to be used in prospecting as aforesaid, and delivered the same to the said Matthew, whereupon the said Matthew, pursuant to said agreement, went into the southern portion of Shoshone county for the purpose of prospecting as aforesaid.

"4. That while so using the materials and supplies furnished by the said plaintiff and defendant Ellis as aforesaid, the said defendant Matthew did, on or about the twenty-fifth day of May, 1901, acquire an undivided one-half interest in and to the Wild Rose mining claim, situated in the Pierce City mining district, Shoshone county, Idaho which said Wild Rose mining claim was located in the name of W. S. Wilkinson, and said Matthew assisted in the making of said location, and said Wilkinson, pursuant to an agreement with the said Matthew, conveyed the said undivided one-half interest in and to the said Wild Rose claim to said Matthew, notice of location of said Wild Rose lode mining claim being recorded on the fifteenth day of July, 1901, in book W of Quartz Locations, at page 24 thereof, records of Shoshone county Idaho. That the said Matthew received a deed to the said undivided one-half interest in the said Wild Rose mining claim from said Wilkinson, pursuant to an agreement made between the said Wilkinson and the said...