Wilson v. Wilson

• Decision Date: 11 August 1902
• Citation: 41 Or. 459,69 P. 923
• Parties: WILSON et al. v. WILSON et al.
• Court: Oregon Supreme Court

69 P. 923

41 Or. 459

WILSON et al. v. WILSON et al.

Supreme Court of Oregon

August 11, 1902

Appeal from circuit court, Douglas county; J.W. Hamilton, Judge.

Suit by W.C. Wilson and another against G.W. Wilson and another. From a decree in favor of defendants, complainants appeal. Affirmed.

The complaint alleges, in substance: That plaintiffs are husband and wife. That prior to November, 1888, and until May 3 1895, plaintiffs were the owners in fee of 1,608 acres of land, situated in Douglas county, Or., particularly describing the same. That plaintiff W.C. Wilson and defendant George W. Wilson are brothers, and the sons of Daniel Wilson are brothers, and the sons of Daniel Wilson, deceased. That prior to May, 1888, W.C. and Daniel were stockholders in the Green Mountain Mining Company, a private corporation, and together owned more than half of the capital stock thereof. That the corporation was the owner of a quartz mining claim situated in Douglas county, but not upon the said lands of plaintiffs. That on or about May 22, 1888, W.C. and Daniel entered into a copartnership, for the purpose of leasing and working the claim for their own advancement and benefit, and then and there agreed with each other upon the following terms, namely, that W.C. should procure a lease from the company, take possession thereof, and work the claim, and attend to it, direct, manage, and supervise the operation of the same in extracting gold therefrom; that Daniel should advance from his private funds such sum or sums of money from time to time as might be necessary to purchase tools machinery, and supplies, pay for labor, and defray other expenses in operating the mine, which money, so advanced, was to be expended by the copartnership, and repaid to Daniel out of the clear profits of the venture; and that the profits remaining after paying such advances and the losses incurred in operating the business should be divided and shared equally between the partners. That, in pursuance of the agreement, W.C. procured the lease to the mine for the copartnership, entered into possession, managed, and supervised the opening, improving, and working thereof, and continued so to do until the death of Daniel, November 14 1890. That prior to November 30, 1888, Daniel advanced $1,800, and subsequently, on or about December 23, 1888 advanced $580, aggregating $2,380, all of which was expended in the operation of said mine, in accordance with the copartnership agreement. That the copartnership expended and incurred liabilities in working and operating said mine far in excess of the moneys advanced by Daniel. That on or about said November 30, 1888, Daniel, being desirous of withdrawing his personal attention from the business, and removing to the state of Washington, requested plaintiff to assume the entire responsibility of operating the mine, and to collect and remit to him the net profits of the business, applicable to the repayment of the amount so advanced, and to secure the payment of the same by the promissory note of the plaintiffs. That W.C. acceded to such request, and thereupon with his wife executed and delivered to Daniel their promissory note for said claim of $1,800, payable three years after date, and on December 23, 1888, executed a second note for $580 payable in one year. That the sole and only consideration for said notes was the money expected to be realized from the business of the copartnership over and above the operating expenses, and the amount thereof applicable to the reimbursement of Daniel for the advances made. That W.C. operated said mine skillfully and prudently, but at a loss far in excess of said advances, without at any time realizing any profit applicable to the payment or discharge of said promissory notes, or either of them, whereby the consideration thereof wholly and entirely failed. That such copartnership continued until the death of Daniel, and no settlement of the accounts and business has ever been had with him, or any representative of his estate. That the copartnership property is undisposed of, and that upon a full and final accounting a large amount of money will be found due W.C. from the estate of Daniel. That Daniel died in the state of Washington, and on December 19, 1890, the defendant George W. Wilson was appointed administrator of his estate in that state. That on December 23, 1892, he, as such administrator, instituted an action upon each of said notes in the circuit court for Douglas county in this state, and that plaintiffs appeared and filed their answer in each of said actions, which were adjudged insufficient, because equitable in their nature, and did not constitute a defense at law, whereupon judgments were given and rendered against them. That on September 19, 1893, he caused executions to issue, and certain personal property of W.C. to be sold. That later, on February 1, 1894, he caused alias executions to issue, and the aforesaid real property to be sold to satisfy the same. That George W. Wilson, as such administrator, became the purchaser, and subsequently, on or about May 3, 1895, obtained a sheriff's deed therefor. That on April 22, 1897, upon the application of George W. Wilson as administrator, the defendant George M. Brown was, by the county court of Douglas county, appointed administrator of the estate of Daniel in and for the state of Oregon, to whom letters of administration were duly issued. That...