Wood v. Fox

• Decision Date: 13 January 1893
• Citation: 8 Utah 380,32 P. 48
• Court: Utah Supreme Court
• Parties: WILLIAM H. WOOD, APPELLANT, v. MOYLAN C. FOX AND ANOTHER, RESPONDENTS. JOHN N. WHITNEY, APPELLANT, v. MOYLAN C. FOX AND ANOTHER, RESPONDENTS

32 P. 48

8 Utah 380

WILLIAM H. WOOD, APPELLANT, v. MOYLAN C. FOX AND ANOTHER, RESPONDENTS.

JOHN N. WHITNEY, APPELLANT, v. MOYLAN C. FOX AND ANOTHER, RESPONDENTS

Supreme Court of Utah

January 13, 1893

APPEAL from judgment of the district court of the third district and from orders refusing a new trial. The opinion states the facts, except the following: The findings in both cases were precisely similar except as to the name of the plaintiff, and were as follows:

That on and prior to October 7, 1872, the plaintiff was the owner of two hundred and fifty shares of the capital stock of the Eureka Mining Company of Utah, and that on and prior to said date, Joab Lawrence, deceased, was the owner of more than fifteen hundred shares of said capital stock.

That prior to said date, the plaintiff delivered to said Lawrence certificates of his stock representing 250 shares thereof and standing in plaintiff's name on the books of said company, and that plaintiff delivered said stock to said Lawrence to be disposed of by him, together with his (said Lawrence's) own stock, for the joint benefit of plaintiff and said Lawrence.

That on the date last aforesaid, the said Lawrence sold and disposed of 1,500 shares of his own and said 250 shares of plaintiff's stock together with 250 shares belonging to one John N. Whitney, to one Eber B. Ward, and as a part consideration of said sale, said Lawrence received the real estate described in plaintiff's complaint, taking the deed therefor in his own name individually; that the said Lawrence also received, in consideration of said sale of said stock, a large amount of cash in hand, besides other property. That the sum of $ 23,587.50 of the amount of cash received by the said Lawrence, as aforesaid, was applied by him in taking up an indebtedness against the Eureka Mining Company; that plaintiff was the owner of one-eighth of the total number of shares of said stock so sold by the said Lawrence to said Ward, the total number of said shares being 2,000, whereof 1,500 shares belonged to said Lawrence, 250 shares to said plaintiff, and 250 shares to said W. H. Wood that the said real estate and the said $ 23,587.50 were received by the said Lawrence in trust for said plaintiff to the extent of an undivided one-eighth interest; that the balance of the consideration received by said Lawrence for said sale of said stock was immediately after said sale distributed between said Lawrence, the plaintiff herein, and said Wood, according to their respective interests therein.

That in recognition of said trust in favor of plaintiff in said real estate and in said $ 23,587.50, the said Lawrence, on November 9, 1872, executed and delivered to said plaintiff the declaration of trust set out in plaintiff's complaint. That on, to-wit: November 9, 1872, the said Eureka Mining Company of Utah executed to one Theodore M. Tracy trustee, a certain mortgage to secure the payment of $ 43,587.50; the said Tracy taking and holding the said mortgage as trustee for the said Lawrence. That $ 23,587.50 of said sum of $ 43,587.50 represented said indebtedness of said Eureka Mining Company of Utah, which had been taken up by said Lawrence as aforesaid with a portion of the proceeds of said sale of stock. That the remaining $ 20,000 of said $ 43,587.50, secured by said mortgage represented an indebtedness due from said Eureka Mining Company of Utah to said Lawrence individually; that said mortgage was not given to secure in whole or in part, any indebtedness due from said company to said plaintiff or to said Wood, on account of services rendered by them or either of them to said company.

That said mortgage was afterwards and prior to the 26th day of August, 1874, assigned by said Tracy to said Lawrence, and the said Lawrence received the same in trust for plaintiff to the extent of plaintiff's interest therein, as aforesaid that is to say, to the extent of one-eighth of $ 23,587.50 and no more.

That the declaration of trust referred to in the fourth finding herein, was in the words and figures following, towit:

"SALT LAKE CITY, November, 1872.

"W. H. Wood:

"This is to certify that you are entitled to one-eighth interest in the real estate, mining and rolling mill stocks, and in the $ 23,587.50 of which the Eureka Mining Company of Utah are indebted to me, of the property acquired by me of E. B. Ward, of Detroit, Michigan, October 7th, less the farm of one hundred and sixty acres which was given to A. A. Griffith. I have received of you twenty shares of Eureka stock, your one-eighth of the one hundred and sixty shares which was given to Messrs. Griffiths & Mayhue.

"JOAB LAWRENCE."

That the said Joab Lawrence took proceedings to foreclose the said mortgage and did foreclose the equity of redemption of the property therein contained. Said property included the mining property of what had been the Eureka Mining Company of Utah. That at the time of the foreclosure, a new corporation had been organized, under and by virtue of the laws of the Territory of Utah, that had succeeded to the said last named corporation and was called the Eureka Hill Mining Company; that said Eureka Hill Mining Company had a capital stock of 10,000 shares. That said decree of foreclosure was entered on the 27th day of July, 1876, and thereafter a deed of the United States Marshal for said property was duly executed to the said Joab Lawrence.

That the said Joab Lawrence sold and conveyed to the said Eureka Hill Mining Company on the 13th day of March, 1877, all his right, title and interest in and to the said premises, and all that he had acquired under the said mortgage and the foreclosure thereof; and in part consideration thereof he received thirty per cent. of the capital stock of the said Eureka Hill Mining Company, to-wit: 3,000 shares.

That the said Joab Lawrence took said shares of stock in his own individual name on the date aforesaid, and held and retained the same in his own name until the date of his death which took place on the 28th day of December, 1888 (and claimed and received the dividends thereon, and in all respects held and treated said shares of stock and the dividends received thereon as his own property, and did not at any time recognize any right or interest therein belonging to plaintiff). That the amount of dividends received thereon at the commencement of this action amounted to $ 94 per share, and at the time of the hearing of this case to $ 124 per share.

That on the 27th day of September, 1875, the said Joab Lawrence wrote to said W. H. Wood the following letter:

"Wm. H. Wood, Esq.:

"Dear Sir--I am in receipt of yours. Hempstead advises me that the foreclosure suit will come up probably in October term, say about the last of the month. Your interest in the mortgage is one-eighth of $ 25,000, $ 3,125. The administrators in the Ward Estate have given Mr. Romeyn notice of their intention to amend their complaint, notwithstanding the demurrer to the complaint was sustained and the injunction removed as against me. I have been spending a great deal of money and time in endeavoring to protect the Detroit property. I now intend going to Salt Lake early in the month. I wish you would at once inform me when you will probably be ready to go West, or will be in Salt Lake.

"Yours, etc.,

"JOAB LAWRENCE."

And on the 26th day of December, 1875, said Joab Lawrence also wrote said Wm. H. Wood, as follows:

"Mr. Romeyn reminds me under date of the 16th inst. that the suit of Ward against Lawrence, Whitney, and Wood has been discontinued, the receiver discharged and the property placed in my possession. The entire rents have been used up, only $ 317 to balance, which was paid to Romeyn.

"Yours, &c.,

"LAWRENCE."

That at no time after December 26, 1875, did plaintiff claim or demand of said Lawrence any portion of said mortgage property or the proceeds thereof, or any dividends received thereon, until April 6, 1888, nor did said Lawrence recognize or admit that plaintiff had any interest therein.

On July 18, 1876, William H. Wood wrote to John N. Whitney a letter, of which the following is a copy:

"WEST MILLBURY, July 18th, 1876.

"Friend Whitney:

"Sometime since I rec'd a note from you and not having anything new to say, said nothing. I have been knocking around Boston, N. York, Phil'd and having this awful hot weather until I have got sick, and am housed and have a doctor--hope to get through it in a few days--but don't feel worth a cent.

"When in Boston I go to the 'Silver Islet' office and find the report from the mine good, but no sales of any account. I will keep you posted on it, and if a chance does come will get you out and myself. I met Hill (of the Winnemucca) in Phil'd. How are things in Utah? And does Lawrence and you get along?

"You know you and myself have about $ 17,000 of our money in the mortgage, besides our portion of the Detroit R. E. and if necessary, have some money left to present my claim in court for a fair and honest adjustment. It seems to me that we should commence and claim our rights very soon, by a suit, if no other way--all I wish is what is justly due me.

"Very truly yours,

"Wm. H. WOOD."

This letter was received by John N. Whitney in due course of mail and was produced by him on the trial of this action in pursuance of a notice.

On March 1, 1880, William H. Wood wrote to John N. Whitney, a letter of which the following is a copy:

"SAN FRANCISCO, March 1st, 1880.

"Mr John N. Whitney:

"Dear Sir--Yours came to hand some time since and fully noted. What course is the best to take with Lawrence to bring him to a settlement? Will the law work in this case this late day? Our claim may be good up on the Eureka in case he should wish to sell as I have his...