Rae v. Cameron
| Decision Date | 05 June 1941 |
| Docket Number | 8099. |
| Citation | 114 P.2d 1060,112 Mont. 159 |
| Parties | RAE v. CAMERON et al. |
| Court | Montana Supreme Court |
Rehearing Denied July 1, 1941.
Appeal from District Court, Fifth District, Jefferson County; H. G Rodgers, Judge.
Action by Sidney S. Rae against C. G. Cameron and others, for recovery of wages and rental. From a judgment for plaintiff defendant James O'Grady appeals.
Affirmed.
R. H. Glover, S. B. Chase, Jr., and J. D. Stephenson, all of Great Falls, for appellant.
John G. Brown, Wm. A. Brown, and C. E. Pew, all of Helena, for respondent.
This appeal involves three causes of action, number one being for the recovery of wages for labor performed by plaintiff for defendants on certain mining operations; two, for the recovery of rental for the use by the defendants of an electric are welder and certain materials furnished; and, three, for the recovery of wages for work and labor performed on the same mining operation by twenty-one other workmen whose claims had been assigned to plaintiff for the purpose of collection.
Three parties defendant were named, all of whom had entered into a written agreement pertaining to a placer mining venture in Jefferson county, Montana. Two of these defendants, C. G. Cameron and Dave Nimmons, filed a joint answer admitting the allegations of the complaint, but alleging also that they were not liable to plaintiff by reason of the fact that they were simply employees in charge of the venture and that their codefendant and his associates were liable for the claims. Codefendant James O'Grady filed a separate answer in which he denied the allegations of the complaint, and as to the twenty-one claims in the third cause of action alleged that plaintiff was not the real party in interest.
The cause was tried by the court sitting without a jury upon stipulated facts. Judgment was entered in favor of plaintiff, respondent here, against all of the defendants. Defendant O'Grady is the sole appellant on this appeal.
Plaintiff's theory is that appellant O'Grady is liable on the ground that he and his two codefendants--Cameron and Nimmons--were copartners. The trial court found that "defendants were engaged in a joint adventure and that all of the allegations of plaintiff's complaint were true."
The appeal presents first for decision the question of whether in fact a joint adventure agreement was entered into between the parties and whether the parties were liable thereon for the claims involved; and, secondly, whether plaintiff, as assignee of the twenty-one wage claims for the purpose of collection in the third cause of action, is the real party in interest.
It was stipulated between the parties that there are due, owing and unpaid to the twenty-one wage claimants the amounts claimed in the complaint and as set forth in their written assignment introduced in evidence as Exhibit No. 2. It was not, however, stipulated or agreed that the amounts were due and owing from appellant, but only that they were due and owing from some one. This statement also appears in the record: "Mr. Brown: It may be admitted that prior to the wage demands that are the subject of this lawsuit these men described in Exhibit 2 had been employed on this work and had been paid by Cameron and Nimmons from funds advanced by Mr. O' Grady and the persons that are stipulated as having been associated with him.
Mr. Glover: By funds that were advanced by Cameron and Nimmons."
It was also agreed that the electric arc welder, subject of the second cause of action, was rented at the amount stated to Cameron and Nimmons for use on the placer grounds involved.
Was there a joint adventure? Solution of this question depends almost entirely on the written agreement between the parties, which, under the circumstances, we set forth in its entirety as follows:
"Memorandum of Agreement
The following is a memorandum of agreement entered into between C. G. Cameron and Dave Nimmons, copartners under the firm name of Cameron & Nimmons, herein designated as the Copartnership, and James O'Grady and his associates, hereinafter designated as the Syndicate.
First: It is understood that the Copartnership has acquired by contract, an option to purchase a lease upon the Lewis placer grounds in Mitchell Gulch, in Jefferson County, Montana, and have also acquired the right to pump the waters now in and hereafter flowing into the Economy mine and to use said waters in carrying on the placer mining operations on said placer grounds. Reference to both contracts is hereby made and the provisions thereof are to be considered part and parcel of this agreement to the same extent as if they were incorporated herein in full.
Second: The Copartnership has solicited the Syndicate to furnish funds for the purpose of making a test of the value of said placer grounds and, in the event that said test shall prove satisfactory, to purchase machinery and equipment and to carry on the expenses and obligations of the operation of the placer mining enterprise.
Third: The copartnership agrees that as expeditiously as possible it will procure equipment and take other necessary steps to make a test of the value of said placer grounds, said test to be made in accordance with a plan and formula agreed upon by said Copartnership and approved by A. E. Wheeler upon behalf of said Syndicate, and for the purpose of paying the expense of said test, the Syndicate agrees to advance the funds therefor but shall not be obligated in any event to advance to exceed Four Thousand Dollars ($4,000.00) for that purpose.
Fourth: If said test proves the ground to have a value unsatisfactory to said Syndicate, then the Syndicate shall have the right to abandon the enterprise, losing the money so advanced; but if the test is satisfactory to the Syndicate, then the Syndicate reserves to itself the right and option to furnish additional funds to purchase machinery, equipment, to construct power lines and water lines, and to do such other things as shall be necessary in order to carry on the successful operation of said placer mining enterprise and to perform the obligations of the contracts above referred to, limiting the obligation of the Syndicate, however, to the sum of Fifteen Thousand Dollars ($15,000.00) to be advanced by it in addition to the sum that shall be advanced for paying the expenses of the test of the ground, and the Copartnership, upon its behalf, hereby grants to the Syndicate the right and option above set forth.
Fifth: It is agreed that the machinery and equipment shall be purchased for and in the name of the Syndicate and that the title thereto shall remain in the Syndicate until the Syndicate shall have been repaid all moneys advanced by it for the purpose of paying the expenses of making the test and for the purpose of buying the machinery and equipment and defraying the expenses of the operation and for any other purpose, the Copartnership having the right to the possession of said machinery and equipment and the right to the operation of the same in said enterprise.
Sixth: It is further agreed that all profits derived from the operation of said placer mining enterprise shall be withheld from distribution and shall be paid over to said Syndicate until the Syndicate shall have been repaid all money that it shall have advanced for the purposes aforementioned.
Seventh: It is further understood that in the event the test proves satisfactory to the Syndicate and the Syndicate shall elect to proceed with the further financing of the enterprise that then a corporation shall be organized, with a capital stock of One Hundred Thousand Dollars ($100,000.00), and that said lease and water agreement shall be assigned to said corporation, and after the Syndicate shall have been repaid the money advanced, the title to the machinery and equipment shall also be assigned and transferred to said corporation, and that in consideration of such transfers the Copartnership shall receive not less than Fifty Thousand Dollars $50,000.00) and not more than Sixty Thousand Dollars ($60,000) of the capital stock of said corporation, which capital stock said Copartnership shall distribute fifty per cent (50%) to itself and fifty per cent (50%) to James O'Grady and to the members of his Syndicate as he shall designate said members.
Eighth: It is understood that in the event the Syndicate elects to continue the operations of said placer mining enterprise after the test, the work shall be carried on by the Copartnership until such time as the corporation may be organized and may take over the operations, but that the Copartnership shall be obligated to make transfers of said lease and contract to said corporation upon demand of said Syndicate, and that in any event the corporation shall take over the property and the operation thereof when the Syndicate shall have been repaid the moneys it shall have advanced.
Ninth: If the Syndicate shall not have been fully repaid the money it shall have advanced at the time the corporation takes over the property, then it is understood that all profits derived from the operation of the placer mining enterprise shall be withheld from distribution and shall be paid by the corporation to the Syndicate until the Syndicate shall have been repaid all moneys advanced by it for all purposes.
Tenth It is agreed that the members of the Copartnership shall give their time and attention to making the test of said placer ground without any compensation to themselves for their time and effort but that they shall receive reasonable expenses incurred by them, and that in the event the Syndicate elects to proceed with the further financing of the enterprise, and during the time that the Copartnership shall carry...
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