Noyes v. Barnard

• Decision Date: 28 May 1894
• Docket Number: 109.
• Citation: 63 F. 782
• Parties: NOYES et al. v. BARNARD. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

63 F. 782

NOYES et al. v. BARNARD. ^[1]

No. 109.

United States Court of Appeals, Ninth Circuit.

May 28, 1894

This was an action by J. E. Barnard against Henry T. Noyes and John S. Noyes. The complaint, sworn to and filed May 22 1891, alleged that on June 5, 1882, defendants and Delevan F Clark and M. P. Filmore entered into an agreement with plaintiff and one Charles G. Noyes whereby the latter agreed to purchase for the former certain redwood timber lands, and to receive therefor 15 per cent. of the net profits to be derived from the sale of such lands or from stumpage, after adding to the sum of money expended in the purchase thereof the annual taxes and 7 per cent. interest per annum 'stumpage' to mean the value of the timber scaled on the land if cut by defendants, or the amount received from the sales, defendants 'to determine the times and terms of sales of either, the market value of stumpage there obtaining. ' That plaintiff and said Noyes, immediately after the execution of said contract, purchased at divers times from June 5, 1882, to February 17, 1883, 5,198.44 acres of redwood timber lands for defendants and their associates the total cost of which, under the terms of the contract, amounted on August 6, 1883, to $32,550.64. That, on such day, defendants and their associates were offered by a responsible person, willing and able to purchase said lands, the sum of $25 per acre for all of said lands, and that such person, if such offer had been accepted, would have paid defendants therefor the sum of $129,963.25, but that defendants declined such offer. That the net profits of the purchase of such lands amounted on August 6, 1883, to $97,416.61, and that plaintiff, in September, 1883, demanded of defendants his commissions of 7 1/2 per cent. upon such net profits, which they refused to pay. That Delevan F. Clark and Millard P. Filmore, defendants' associates, owned three-eighths of all of said lands, and subsequently to August 6, 1883, sold all their interest to defendant John S. Noyes; and that John S. Noyes sold one-quarter interest to R. A. Alger, and defendants paid plaintiff his commissions on said sale of one-quarter interest. That defendants have not paid plaintiff his commissions of 7 1/2 per cent. upon the remaining three-fourths of the net profits of said purchase, amounting to $73,059.46. That defendants were at the date of the contract, and ever since have been, and now are, nonresidents of the state of California, and are residents of the state of New York. That defendants have been continuously absent from the state, etc. That Charles G. Noyes departed this life in San Francisco, April 1, 1890. Wherefore plaintiff demanded judgment for $5,479.46, with interest from August 6, 1893. An attachment was issued against such timber lands and levied upon defendants' interest therein. The summons was served by publication. Defendants appeared, and had the cause removed to the circuit court for the northern district of California. Defendants demurred to the complaint, on the ground 'that the said complaint and the matters therein contained, in manner and form as the same are therein stated and set forth, are not sufficient in law for the said plaintiff to have or maintain his aforesaid action therefor against said defendants, and that said defendants are not bound by law to answer the same, for that said complaint does not upon its face state facts sufficient to constitute a cause of action. And, for a second and further ground of demurrer, said defendants aver that the supposed promises and undertakings mentioned in said complaint (if any were so made) were, and each of them, as appears upon the face of the said complaint, jointly with one Charles G. Noyes, and not by plaintiff alone. And, for a third and further ground of demurrer, said defendants aver that the said supposed promises and undertakings mentioned in said complaint (if any were so made) were, and each of them, made, as appears upon the face of said complaint, by Delevan F. Clark and one M. P. Filmore, together with defendants, and such supposed contracts or undertakings were not made by defendants alone. And defendants further say that, by reason of the facts averred as aforesaid, the defendants pray judgment (1) that the said plaintiff may be barred from having or maintaining his aforesaid action thereof against said defendants; (2) that, by reason of the fact that the said Charles G. Noyes is not joined in said action as plaintiff, the defendants pray judgment that the said complaint herein may be dismissed; (3) that by reason of the fact that the said Delevan F. Clark and M. P. Filmore are not made parties defendant in this action, together with said defendants, they pray judgment that the said complaint herein may be dismissed, with costs. ' The demurrer was overruled, and an answer filed. The trial resulted in a verdict for plaintiff for $8,000. Defendants sued out a writ of error, specifying, inter alia, as error, the action of the court in overruling the first ground contained in the demurrer, in that the complaint does not state facts sufficient to constitute a cause of action.

Frank M. Stone, for plaintiffs in error.

Horace L. Smith and S. M. Buck, for defendant in error.

Before GILBERT, Circuit Judge, and KNOWLES, District Judge.

KNOWLES District Judge.

The defendant in error in this case, with one Charles G. Noyes, entered into a contract with the plaintiffs in error and Delevan F. Clark and M. P. Filmore to act for them in purchasing certain redwood timber land on the Van Duzen river, in Humboldt county, state of California. The defendant in error and said Charles G. Noyes were to receive for their services 15 per cent. of the net profits to be derived from the sale of the said lands, or from stumpage, after adding to the sum of money expended in the purchase thereof the annual state, county, or other government taxes, 7 per cent. interest per annum on the purchase price. The agreement entered into was made in the form of a letter, and the acceptance of the terms was made by the following indorsement thereon:

'We agree to the terms expressed in the within instrument and agreement, with the understanding that 'stumpage' means the value of the timber scaled on the land, if cut by us, or the amount received from sales, and that we are to determine the times and terms of sales of either, the market value of stumpage there obtaining.'

Before this action was brought, Charles G. Noyes died. The defendant in error brought this action, in his own name, in the superior court in and for the county of Humboldt, state of California. The petition for removal shows that defendant in error is a citizen of the state of California, and that plaintiffs in error are citizens of the state of New York. When this suit was commenced, an attachment was issued against the property of plaintiffs in error, and levied upon their interest in the said real estate purchased on said Van Duzen river. The summons was served by publication. The plaintiffs in error voluntarily appeared in the cause, and had the same removed to the circuit court of the United States for the northern district of California, on account of the diverse citizenship of the parties to the action.

In the circuit court the plaintiffs in error interposed their demurrer to the complaint, alleging that the same was defective in not stating facts sufficient to constitute a cause of action; that it was defective in not uniting Charles G. Noyes, as a plaintiff, with defendant in error, and also in not uniting the above-named contracting parties, Clark and Filmore, as defendants. The point seems to be made in the brief of plaintiffs in error that the complaint is defective because it appears therefrom that the defendant in error brought his action to recover, in his own right, for one-half of the 15 per cent. of compensation to be allowed him and Charles G. Noyes, when the contract is a joint one, and must be sued on as such. We do not doubt but that the contract must be treated as a joint contract, and cannot be sued on as a several contract. There is nothing in the complaint which would warrant the court in holding that it was otherwise than a joint contract. The presumption of law is that when two persons enter into a contract to perform certain work together, in consideration of a certain sum of money to be paid to them jointly therefor, it is a joint contract. Pom Rem. & Rem. Rights, Sec. 185. If there are any facts that would show that a contract which is presumptively a joint contract is one in severalty, they should be pleaded; and if a contract which was a joint contract at its inception has been, by any additional or subsequent agreement, changed into one in severalty, the facts showing such change should be pleaded, and the contract should be declared on in its changed form. No such subsequent agreement appears in the pleadings, and the original contract is the basis of the cause of action presented by the complaint. We must therefore consider that the contract sued on is a joint one. Charles G. Noyes, the co-contractor of defendant in error, died before this action was brought. The defendant in error was a survivor therein, and as such brought this action. It was not necessary to have stated in the complaint that he brought it as a survivor. That would have been the statement of a conclusion of law. The allegation of the death of Charles G. Noyes showed this. There is an allegation in the complaint that defendant in error has not been paid his commissions of 7 1/2 per cent. upon the remaining net profits of said purchase. Why defendant in error did not claim in his complaint the 15 per cent. on the net profits, to which he, as a survivor, was entitled, it is difficult to...