Nikolaus v. Howe

MUSSELL, J.

Plaintiff brought this action to recover for services rendered to defendants in hauling tungsten ore from Fallon, Nevada, to Bishop, California. His original complaint stated a cause of action on a book account and at the

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conclusion of the presentation of plaintiff’s evidence, he was permitted to file an amended complaint to conform to the proof. In the second cause of action therein it was alleged that the defendants were copartners engaged in the business of mining under the firm name and style of Red Top and Red Ant Mining Company, a copartnership; that between January 4 and February 13, 1952, the defendants and each of them became indebted to plaintiff in the sum of $3,281.51 for services rendered to said defendants, at their special instance and request, for the hauling of ores and materials; that defendants promised to pay plaintiff said sum and that it has not been paid. The trial court rendered judgment against the three named defendants and defendants Burney and Moreno appeal.

On or about November 26, 1951, defendant Howe, who was the sole owner of a contract for the purchase of six mining claims in Nevada, entered into three written agreements with defendants Burney and Moreno in which Howe agreed to advance $6,500, Burney $5,800 and Moreno $2,000, all to be used in enabling Howe to complete the payments under his contract for the purchase of said claims, for which advances Howe was to receive 45 per cent interest, Burney a 40 per cent interest and Moreno a 15 per cent interest in the ownership of said mining claims and purchase contract. The parties agreed to enter into a partnership agreement covering the percentages to each. One of the agreements was in the form of a certificate of limited copartnership agreement prepared in accordance with the provisions of section 15502 of the Corporations Code. This instrument was not filed and recorded because defendants Burney and Moreno refused to acknowledge it before a notary public. The transfers of interest in the purchase contract and in the mining claims were never consummated.

Defendant Howe testified that he first talked with plaintiff about hauling ore on December 28, 1951; that “I told him that myself and Mr. Ernest Moreno and Mrs. Burney were associated in a mine over east of Fallon, Nevada; that we had some ore on the dump and that we wanted to haul that ore and wondered if he would be interested in hauling and he said he would.” I said “Now as to the grade of the ore, I have an engineer out in the car here and I also have one of my associates and you can go out and see them and talk to them.” He said “Allright, we will go out and talk to them”; that he then introduced plaintiff to defendant Moreno