Utah-Nevada Co. v. De Lamar

• Decision Date: 03 October 1904
• Docket Number: 1,067.
• Citation: 133 F. 113
• Parties: UTAH-NEVADA CO. v. DE LAMarch
• Court: U.S. Court of Appeals — Ninth Circuit

133 F. 113

UTAH-NEVADA CO. v. DE LAMarch

No. 1,067.

United States Court of Appeals, Ninth Circuit.

October 3, 1904

This action was commenced March 12, 1902, in the superior court of the city and county of San Francisco, Cal., by the plaintiff to recover of and from the defendant the sum of $3,422,636 alleged to be due and owing upon a certain agreement between Isaac E. Blake and the defendant.

The complainant, among other things, alleges: '(1) That the Utah-Nevada Company is a corporation organized and incorporated for the purpose, among other things, of dealing in real property, including mining claims, and operating working, and developing the same, and acquiring stock in other corporations, and was such corporation at all the times hereinafter mentioned. (2) That on the 10th day of April 1894, one Isaac E. Blake was the owner of a contract for the purchase of that certain mining claim and real property situated in Lincoln county, state of Nevada, and more particularly described as follows, to wit: The mining claims known as the 'Monitor' and 'Jim Crow' mining claims in what is now known and described as 'DeLamar,' Lincoln county, Nevada. (3) That while said Blake was the owner of said contract to purchase, and said contract had not expired and was in full force and effect, said defendant, DeLamar, agreed with said Blake for a valuable consideration that, together with said Blake he would acquire, own, work, and operate for the purpose of abstracting minerals therefrom the said mining property, and to incorporate a corporation for the purpose of acquiring, owning, working, and operating said mining property, and to furnish the necessary capital for doing the same, and, after the moneys advanced by said defendant had been repaid to him out of the proceeds of working and operating said mining property, to transfer to said Blake forty-nine per cent. of the stock in said corporation. (4) That, relying upon said agreement of said DeLamar, said Blake went with said DeLamar from the state of New York to the state of Nevada, in the year 1894, for the purpose of carrying out and performing said agreement with said DeLamar, with assistance of said Blake, acquired the title to said mining property, and paid the purchase price therefor, and commenced to work, operate, and develop said mining property. (5) That thereafter, and prior to the date hereof, and between the said dates, said DeLamar received from the proceeds of the said property the purchase price advanced and paid by him as aforesaid, together with all the cost of developing and operating the said mining property, and, in addition thereto, as plaintiff is informed and believes, and therefore alleges, the sum of seven million dollars ($7,000,000). (6) That prior to the date hereof, the said Blake, for the valuable consideration, assigned and transferred to the Utah-Nevada Company all of his right, title, and interest in, to, and under said contract and agreement with said DeLamar to the Utah-Nevada Company, the plaintiff herein. (7) That said Blake and said Utah-Nevada Company have, and each of them has, performed on his and its part all the terms and conditions of said agreement with said DeLamar, as aforesaid, to be performed by the said Blake and the said company, but that said DeLamar has not paid or delivered to the said Blake or the said company said forty-nine per cent. of the said property, or forty-nine per cent. of the proceeds of the said mining property, or said forty-nine per cent. of the stock in said company so formed as aforesaid, or any part thereof, except the sum of $7,363.44.'

Thereafter, on March 26, 1902, the defendant filed a petition is said superior court for the removal of the cause to the United States Circuit Court. It is alleged in this petition: '(6) That this suit always has been and is one of a civil nature at law, of which the Circuit Courts of the United States are given jurisdiction by the act of Congress of the United States entitled 'An act to correct the enrollment of an act approved March 3d, 1887, entitled 'An act to amend sections one, two, three, and ten of the act to determine the jurisdiction of the Circuit Court of the United States, and to regulate the removal of causes from state courts, and for other purposes,' approved March 3d, 1875,' approved August 13, 1888, and that this action is now pending is said superior court of the city and county of San Francisco, and that the matter in dispute therein exceeds, exclusive of interest and costs, the sum or value and the sum and value of two thousand dollars; that is to say, the said action is brought to recover the sum of $3,522,636, besides costs. (7) That the plaintiff herein was, at the time of the commencement of this action, ever since continuously has been, and now is, a corporation organized and existing under the laws of the state of Iowa, and that said plaintiff, at the time of commencement of this action was, ever since continuously has been, and now is, a citizen and resident of the state of Iowa, and that your petitioner, the defendant, was at the time of the commencement of this action, ever since continuously has been, and now is, a citizen and resident of the city of New York, in the state of New York, and that there was, at the time of the commencement of this action, ever since continuously has been, and now is, a controversy therein between citizens of different states, to wit, a controversy between your petitioner, the defendant herein, a citizen of the state of New York, and the plaintiff herein, a citizen of the state of Iowa. (8) That there was, at the time of the controversy therein which always has been and now is wholly between them. That such controversy always has been during all of said last-mentioned times, and now is, wholly between the plaintiff, a citizen and resident of the state of Iowa, as aforesaid, and your petitioner, the defendant, a citizen, resident, and inhabitant of the state of New York as aforesaid, and that the plaintiff and your petitioner are the only parties to this action. (9) That this petition is made and filed before your petitioner ever has been or is required by the laws, or by any laws, of the state of California, or by the rules, or by any rule, of said superior court of the city and county of San Francisco, in which this suit was brought and is pending, to appear, or demur, or answer, or plead to the declaration or complaint of the plaintiff herein, and that your petitioner desires to remove the same from said superior court to the Circuit Court of the United States for the Northern District of California and the Ninth Judicial District, the same being the district in which this suit always has been and is now pending, in pursuance of the provisions of the act of Congress of the United States approved March 3d, 1887, entitled 'An act to amend the act of Congress approved March 3d, 1875, entitled 'An act to determine the jurisdiction of the Circuit Courts of the United States, and to regulate the removal of causes from State courts, and for other purposes,' and to further regulate the jurisdiction of the Circuit Courts of the United States, and for other purposes,' and all acts explanatory and amendatory thereof, and to correct the same, and particularly an act approved August 13, 1888, to correct the enrollment of said act of March 3, 1887.'

After the removal of the case the plaintiff moved the Circuit Court to remand the case to the state court 'upon the grounds that the above entitled Circuit Court has no jurisdiction over said cause and the parties thereto, and that said cause was improperly and illegally removed from said superior court to said Circuit Court, for the reason that the plaintiff above named is the sole plaintiff in said cause, and each and both plaintiff and defendant are citizens of states other than the state in which said cause was commenced and were said citizens at the time of the commencement of said action, and that said plaintiff was not, at the time of the commencement of said action, or at any time since, a citizen of said state of California, and that the petition of defendant above named, upon which said cause was removed from said superior court to said Circuit Court, does not state facts or matters or things sufficient to constitute a cause for the removal of said action from said state court to said United States court, nor any cause for the removal of an action from the said state court to the United States court, provided for in the acts of Congress of the United States upon that subject.'

This motion was overruled. Amended complaints and answers thereto were subsequently filed, and the case regularly came on for trial before a jury. Objections were made to the introduction of any evidence as to the agreement between Blake and the defendant, because it was not in writing, and came within the prohibited provisions of the statute of frauds.

The court below, in closing an extended opinion upon the points involved in the objections urged by defendant, said: 'I have found no rule or principle of law in any of the cases that would authorize me to hold that the agreement alleged in the complaint is not an agreement for the sale of real property, or of an interest therein, either under the law of this state or under the laws of the state of New York. And I am of the opinion that the agreement alleged in the complaint cannot be established by evidence of a parol agreement under the laws of this state. ' After several additional offers of proof on the part of the plaintiff, the court directed the jury to find a verdict for defendant, which was accordingly done, and a judgment was rendered upon the verdict in favor of defendant for his costs.

It is assigned as error: '(1) That said Circuit...