DocketNumber: No. 2,677
Citation Numbers: 39 Mont. 290, 102 P. 331
Judges: Brantly, Holloway, Smith
Filed Date: 6/21/1909
Status: Precedential
Modified Date: 9/9/2022
delivered the opinion of the court.
This cause was tried to the district court without a jury. The court entered judgment in favor of the plaintiff, in accordance with the prayer of the complaint, and from that judgment, and an order denying a new trial, the defendant has appealed.
The complaint alleges: “(1) That plaintiff and defendant were co-owners of the Col. Sellers lode claim in the following proportions, to-wit, plaintiff owning a three-fourths interest, and the defendant a one-fourth interest; (2) that on or about the eleventh day of April, 1906, defendant, for himself, and
The answer admits the allegations of paragraphs 1, 2, 3, and 5 of the complaint, and denies the matters Set forth in paragraph 4 thereof. The defendant then proceeds to allege affirmatively, and as a counterclaim to plaintiff’s cause of action: “That heretofore, to-wit, on or about the eleventh day of April, 1906, plaintiff and defendant made and entered into a certain agreement, wherein and whereby plaintiff made, constituted, and appointed defendant his agent for the purpose of selling plaintiff’s interest in the said Col. Sellers lode claim, and wherein and whereby it was agreed that plaintiff should pay to defendant, as compensation for his services .in selling the said interest of said plaintiff in said claim, five per cent of the purchase price for said interest of plaintiff, together with the sum of $100 in addition thereto, for expenses; that thereafter, on or about the said eleventh day of April, 1906, defendant succeeded in selling said interest of plaintiff in said claim, for the sum of $30,000, of which said sum $26,250 was paid in cash to plaintiff, and the balance was paid in stock of the Butte-Milwaukee Copper Company, to-wit, 3,750 shares of the stock of said company, which said stock is now in possession of this defendant; that defendant
The plaintiff by replication denied that he agreed to pay any sum whatsoever for such services. He admits, however, that he paid the defendant $50, which he says was “simply in appreciation of services rendered by defendant, and not in compliance with, or in recognition of, any alleged agreement or contract between them. ’ ’
The defendant testified as follows: “There was an agreement as to my selling this claim. That agreement is in the form of a business letter, in several letters.” Defendant then introduced in evidence the following letter:
“Moyie, April 18, 1906.
“Geo. Pascoe, Esq., Butte, Mont.
“Dear George: I received your letters and note of agreement last evening and would say you done remarkable well so far with ground. With regards money, if you pay one-half to family and five per cent, to you I guess I would come out about even. Pay money into Davis’ bank to my credit and deduct one hundred dollars from same for your expenses. I think that is about square; if not, you can let me know. For the stock business, I hope I will get over to Butte before that time arrives.
“Sincerely yours,
“JOHN DKEELAND.”
The defendant also testified: “I looked after Mr. Dreeland’s interest in this mining claim and paid the taxes every year, and I made deals here. I made a sale of the property to the Butte & Milwaukee for $35,000 and 5,000 shares of the stock. I deposited Mr. Dreeland’s. money in the bank. The last payment was credited to his wife and himself. The first $5,000 he was here when it was paid. The check was drawn by me, and we both went to the bank, and Mr. Dreeland got his $3,750, and I got the rest of the $5,000. Mr. Dreeland received the three-fourths of the purchase price. The stock was made out in my name because Mr. Dreeland, in the first place, would not take any stock, and I said I would take it, and it was deposited in the bank in my name. Then afterward Mr. Dreeland said he would share with me in. the stock. Mr. Dreeland paid me $50 of the money which is referred to in this letter of the 18th of April. That was paid to pay part of the expenses. There has been no part of the five per cent paid to me on that. I paid $9.89 in taxes on this property. As to the general character of the work which I did, ! attended to working up this deal, and I went to Walkerville several times to get papers' signed, and I sent them to Mr. Dreeland. When I gave Mr. Dreeland his certificate of $22,500,1 said: ‘ There is 5,000 shares of stock here in my name. What are you going to do with that?’ And he said, ‘Three-fourths belongs to me and one-fourth to you.’ and I said, ‘John, there is some consideration about this thing,’ and he said, ‘That is all there is about it.’ I have no claim on this stock except my five per cent. Mr. Dreeland and I had been the owners of the Col. Sellers lode claim for seventeen or eighteen years. My other expenses were about $4.50. The last payment was a straight $30,000 payment. I signed the check and told them to place to Mr. Dreeland’s credit his proportion, $22,500, and the $7,500 X took myself. I told them to place Mr.
The plaintiff was sworn in his own behalf, and was asked what he meant by the letter of April 18. This question was objected to, and the court overruled the objection. The defendant excepted to the ruling of the court, and now .assigns the same as error; but we are unable to conclude that any error was committed in this regard, for the reason that Dreeland was unable to say what he meant by the letter. He" made a long, rambling, involved statement, which was more to his prejudice than to his advantage. He did testify, however, categorically that the defendant wrote him a letter in which he asked for five per cent of the purchase price, and that the letter of April 18 was in answer to this demand. It appears from the testimony that the defendant was somewhat solicitous in behalf of plaintiff’s wife; he fearing that she would not get any part of the purchase price of the Dreeland interest in the mine. Plaintiff also testified that, when he paid the $50 to defendant, the latter said it was more than satisfactory.
The judge of the district court filed the following written decision, which may be construed as the findings of fact and conclusions of law in the ease, in view of the fact that no demand was made for any more definite findings: “In this action heretofore tried by the court, the court finds for the plaintiff, and concludes therefrom that he is entitled to recover from defendant as prayed in the complaint. I am of the opinion the remark in plaintiff’s letter which defendant claims amounts to a promise
The first contention of the defendant is that the complaint does not state facts sufficient to constitute a cause of action. We think there is no merit in this contention. It is based upon the hypothesis that the action is either in claim and delivery, or in conversion, or for partition of the certificate of stock. It is quite clear to us that the action is brought to enforce a trust in the stock, and this appears to have been the theory upon which the action was tried in the court below. (See Gassert v. Strong, 38 Mont. 18, 98 Pac. 497.) The objection that the complaint does not state a cause of action is urged in this court for the first time and is not well taken.
At the trial the plaintiff waived any objection that the matters pleaded in the answer were not a proper subject of counterclaim, so that question is not before us.
The second assignment of error is to the effect that the court erred in holding that the burden of proof was on the defendant. We think the burden was on the defendant. He admitted all the allegations of the complaint, save that the plaintiff was entitled to receive the stock, and urged as a defense to the action his counterclaim for $1,550, the amount of which he maintained was a lien upon the stock. Under these circumstances, we think the burden of proof was upon him; but, at any rate, as the cause was one in equity and was tried to the court sitting.without a jury, there could be, probably, no prejudice to the defendant if the court erred in this ruling.
We hold that there was no contract between the parties, and the judgment and order are affirmed.
Affirmed.