Reich v. Rebellion Silver Min. Co.

• Decision Date: 24 February 1883
• Citation: 2 P. 703,3 Utah 254
• Court: Utah Supreme Court
• Parties: REICH v. THE REBELLION S. M. CO. ET AL

2 P. 703

3 Utah 254

REICH v. THE REBELLION S. M. CO. ET AL

Supreme Court of Utah

February 24, 1883

APPEAL from the third district court. The opinion states the facts.

Reversed.

Arthur Brown, for the appellant.

No statement was filed in this case. The appellant claims he is entitled to judgment on the pleadings.

The complaint alleges that plaintiff was the owner of undivided feet in certain mining claims, which were used to form the capital stock of defendant corporation.

To facilitate the transfer, plaintiff and others deeded to defendant Shields as trustee, and Shields deeded to the new corporation as formed. No accounting has ever been had with plaintiff. It is now said plaintiff is without any remedy. The trustee says he is not liable because he was merely agent of transfer. The corporation claims not to be liable because it made no promise and received no more than it paid for.

I claim that the corporation, knowing by the deed itself that Shields was trustee merely, was in duty bound to see the stock distributed to the real beneficiaries.

That defendant Shields, having accepted this office for the purpose of conveying to the company, was necessarily trustee to see that the proceeds were not unfairly or fraudulently disposed of: Perry on Trusts, sec. 430 et seq.

The trustee knew that the price of land was two hundred shares per foot. Could he honestly, as a corporator, either take that price himself or permit any other corporator to take it? It is manifest that plaintiff could have no other remedy than bringing these two defendants to an account. The facts of complaint are all conceded by answer, except the relative values of properties. We submit that, in the absence of any other showing, the price should be divided according to quantity. If the defendant desired to add the fact of difference of value, if any existed, he should have put that in the record: Prac. Act, sec. 180; 41 Cal. 133; 39 Id. 39.

At all events, the answer not setting forth a defense, plaintiff was entitled to judgment, and the demurrer was improperly sustained. The judgment is erroneous and must be reversed because no findings of fact are made: McKean v. McDermott, 22 Cal. 667; 2 Id. 474; Prac. Act, sec. 180; Dickert v. Wise, 2 Utah, 350; Patterson v. Sharp, 41 Cal. 133.

Woods &amp Hoffman, for the respondent.

The record in this case shows that although the demurrer interposed on the part of the defendant, the Rebellion Silver Mining Company, was sustained, the entire case was tried by the court, and upon such trial judgment was rendered in favor of both defendants and against the plaintiff: See Transcript pp. 8, 9. There is no statement of the case nor assignment of errors made in the record.

As to the defendant the Rebellion Silver Mining Company, the only alleged error that can be noticed is the order sustaining the demurrer.

As to the defendant Shields, there is no bill of exceptions or assignment of errors or statement. This court will not consider the action of the court below in any proceeding had there, or any matter not appearing in the judgment roll: Douglass v. Dakin, 46 Cal. 49; Hutton v. Reed, 25 Id. 478; Rogers v. Cooney, 7 Nev. 213.

Numerous other cases on this point might be cited, but we do not deem it necessary.

Regarding this as the law in the case, the judgment in favor of defendant Shields must be affirmed, as the record discloses no errors and counsel for appellant claims none in his brief.

The judgment is in effect a nonsuit. The finding of the court is "that no cause of action is made against the defendants, or either of them, and the judgment is that said plaintiff's complaint be dismissed," therefore no findings of fact are necessary.

EMERSON, J. HUNTER, C. J., TWISS, J., concurred.

OPINION

EMERSON, J.:

In his complaint the plaintiff alleges, in substance, that he was the owner of undivided feet in one of a number of mining claims which the owners were desirous of consolidating in a corporation, and which were deeded to and formed the capital stock of the defendant corporation; that before, and in order to facilitate the organization of the corporation, he joined with others and deeded his interest to defendant Shields, in trust, that he should deed the same to the corporation when formed, and should take the number of shares to which each was entitled in the name of each individual owner, according to their respective interests; that said Shields did deed to the defendant corporation after its organization; that at the time of the incorporation of the defendant company the terms of the trust deed to Shields was known to the incorporators and then sets out the number of...