Shields v. Mongollon Exploration Co.

• Decision Date: 08 May 1905
• Docket Number: 977.
• Citation: 137 F. 539
• Parties: SHIELDS v. MONGOLLON EXPLORATION CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

137 F. 539

SHIELDS v. MONGOLLON EXPLORATION CO. et al.

No. 977.

United States Court of Appeals, Ninth Circuit.

May 8, 1905

On August 26, 1899, the J. S. Kimball Company, a corporation entered into a written contract at San Francisco, Cal., with Conrad Siem, by which it employed him as its agent to take charge of its store and trading station at Nome, Alaska, to manage its business at Nome and elsewhere as might be agreed upon, and to pay him for his services as such agent and for services theretofore rendered by him an amount equal to one-third of the net profits of the business of said store and trading station from the time of its establishment to the termination of said contract, and it was stipulated that the contract might be terminated by the mutual agreement of both parties or upon written notice of its termination by either thereof. In pursuance of said contract the said agent took possession of the store and business of said corporation at Nome, and remained there in charge thereof during the winter of 1899 and until the spring of 1900, when the corporation terminated the agency, and directed said agent to turn over to the Kimball Steamship Company all of its property covered by the agreement in his possession or under his control. In the latter part of June, 1900, the J. S Kimball Company took forcible possession of its store and business, and ejected said agent therefrom. About July 28 1900, J. S. Kimball arrive in Nome, and commenced negotiations to close up the business between the corporation and Siem. The negotiations which were carried on between Siem and J. S. Kimball representing the corporation resulted in the execution on August 27, 1900, of the deed to Siem under which the plaintiff in error claims an interest in the property in controversy, namely, an undivided one-fourth interest in and to a placer mining claim known as 'Bench Claim No. 1 Below Snow Gulch, First Tier on the Northwest Side of Glacier Creek in Cape Nome Recording District Alaska. ' On August 29, 1899, J. D. Morgan, then the owner of said claim, conveyed unto John S. Kimball and John H. Bullock an undivided one-half thereof. On March 12, 1900, Kimball conveyed to Brander an undivided one-twelfth interest therein, and on July 14, 1900, he conveyed to Tyson an undivided one-eighteenth; so that on August 27, 1900, the date of the deed under which the plaintiff in error claims to have received an undivided one-fourth interest therein, Kimball was the owner of only an undivided one-ninth interest. The plaintiff in error, in her amended complaint, predicated her right to recover an undivided one-fourth interest on the theory that the conveyance from Morgan to Kimball and Bullock conveyed to Kimball individually, and for his own use and benefit, an undivided one-fourth interest, and that by the terms of the settlement between the J. S. Kimball Company and Siem all the interest of J. S. Kimball in the claim in controversy was to be conveyed to the latter. The defendants in error defended on the ground that the interest of J. S. Kimball in the claim in controversy was his individual property, acquired by purchase, and was not considered in the settlement between the J. S. Kimball Company and Siem, and was not intended to be conveyed to the latter under said settlement, but that the conveyance thereof was the result of a mutual mistake between the parties to the said settlement. The action was tried before the court without a jury. The court made findings of fact, which are in substance as follows: First. That on August 29, 1899, J. D. Morgan, being the owner of the mining claim in controversy, conveyed to John H. Bullock and John S. Kimball an undivided one-half interest in that and other mining claims, and that the grantees in said deed thereby became the owners each of an undivided one-fourth interest therein. Second. That on February 28, 1900, Kimball conveyed to A. J. Brander an undivided one-twelfth interest in said claim, and on July 14, 1900, conveyed an undivided one-eighteenth interest therein to Robert J. Tyson, and said grantees entered into possession of said claim; that on August 27, 1900, there was vested in John S. Kimball an undivided one-ninth interest in said claim, and no more. Third. That during the continuance of the agency of Conrad Siem for the J. S. Kimball Company from August 26, 1899, to July, 1900, the said agent caused to be entered and located by various persons, through and by means of his connection with such corporation, a large number of mining claims in sundry mining districts in Alaska for said corporation, and caused some thereof to be located under his own name, others in the name of said corporation, and others in the name of J. S. Kimball, who was the president of said corporation, but all of said claims were located for the benefit of said corporation, and were held by it subject to the agreement between it and its said agent. Fourth. That on or about August 27, 1900, it was agreed between the said J. S. Kimball Company, through its said president and said Conrad Siem, that in full settlement of the accounts between said corporation and Siem the latter should take and receive, and the former should transfer and convey by quitclaim deed to him, all the mining claims of every nature and kind then owned by the said J. S. Kimball Company and Siem or either thereof, or located by any person for them or either of them, or then of record in their names or the name of either of them, save and excepting therefrom certain mining claims thereafter in the findings described. Then follows the description of numerous mining claims so reserved, one of which is the right, title, and interest of J. S. Kimball in the claim in controversy in this suit. Fifth. That after said settlement had been made the attorney for the J. S. Kimball Company and the attorney for Conrad Siem prepared a deed of conveyance, and presented the same to said corporation and to said Siem, and said attorneys represented that the said deed was prepared in conformity to and in accordance with the terms of said agreement and settlement. On August 27, 1900, said J. S. Kimball and the J. S. Kimball Company and Conrad Siem, each relying on the statements so made by said attorneys, accepted said instrument, and thereupon the said corporation, by its attorney in fact and the said J. S. Kimball, executed and delivered to Conrad Siem the deed bearing date August 27, 1900, wherein and whereby there was conveyed to the said Siem all the mining claims and parts of mining claims of every kind whatsoever now owned by the party of the first part or either of them, or located by any person for them or either of them, or now of record in the name of them or either of them, or to which they or either of them is entitled by virtue of any contract made with any person, etc., saving and excepting therefrom claims which were therein thereafter described; that by mutual mistake of the parties there was omitted from the exceptions which were intended to have been inserted in said deed the premises in controversy in this suit and certain other mining claims not necessary here to specify, all of which were acquired by purchase by J. S. Kimball as his individual property, and in none of which said Siem had any interest. Sixth. That said J. S. Kimball executed said deed for the sole purpose of executing in accordance with said agreement of settlement the conveyances that were thereby agreed to be made to said Conrad Siem, and that he relied upon the statements and assurances of his attorney and the attorney of Conrad Siem that the same contained all the reservations and exceptions which had been agreed upon; that at the time of the execution of said deed the J. S. Kimball Company and said Conrad Siem had no right, title, or interest of any kind or nature in the said mining claims mentioned in said reservations and exceptions which were so omitted from said deed, but said J. S. Kimball was the owner of and entitled to an undivided one-ninth interest in the claim in controversy, and no more; that on April 19, 1901, Conrad Siem conveyed all his right, title, and interest in all properties in the District of Alaska to the Behring Sea Improvement & Trading Company, and on August 31, 1901, the said last-named corporation conveyed the same to the plaintiff in error; that on April 19, 1901, the time of making his said conveyance, Conrad Siem had full knowledge and notice of the mistake in said deed of August 27, 1900; that on said date he was the president and attorney in fact of said Behring Sea Improvement & Trading Company, and the principal and only beneficiary stockholder therein, and that said corporation had full knowledge and notice of said mistake, and of the equitable rights of the defendants in error. Seventh. That the plaintiff in error is the wife of H. E. Shields, who, at the time of the settlement so had on August 27, 1900, was the attorney and adviser of Conrad Siem, and he and the plaintiff in error had full, complete, and actual knowledge of said mistake in said deed and of the equitable rights and interests of the defendants in error in said mining claim long prior to the date of the conveyance thereafter made, and knew that the defendants in error were in possession of said mining claim as tenants in common, and holding the whole of same according to their respective interests. Eighth. That prior to the making of the deed to the plaintiff in error, Conrad Siem, as attorney in fact for said Behring Sea Improvement & Trading Company, and in his own proper person, was requested to reconvey or cause to be reconveyed the said mining claims so conveyed to him by mutual mistake on August 27, 1900, or to correct said mistake, but he refused to comply therewith; that the plaintiff in...