Peterson v. Beggs

SHIELDS, J.,

pro tem.

Plaintiff prosecuted this action to recover for services rendered' as a watchman or keeper of a . mining property known as the Kate Hardy Mine. He was employed by the defendant, John W. Morrell, but alleging that all of the defendants were mining partners, claims that they were jointly liable as such for the value of his services. Plaintiff recovered judgment. An attachment was issued in the case which defendants later moved to vacate. This is an appeal from the judgment and an order refusing to dissolve the attachment. The sole ground of attack upon the judgment ’ is that there is no evidence to support it. This appears to be a fact.

On July 8, 1909, one Tyler Dudley appears to have been the owner of the Kate Hardy Mine. On that day he entered into a contract by which he agreed to sell the mine to defendant Will M. Beggs. Beggs having possession of the mine under a previous contract, retained it. under this agreement and on the thirteenth day of July, 1909, entered into an agreement with the defendants Morrell which seems to be decisive of this case. This agreement recites that a number of mines and mining properties belonging to the Morrells had been conveyed to Beggs, and that they had given him a power of attorney; that Beggs had in his own name a contract to buy the Kate Hardy and other mines, that he had expended in and about said mines a considerable sum of money in behalf of the, Morrells, and that he had also performed valuable legal services for them. The contract then provided that although the title to all of 'the mining properties described stood in the name of Beggs, yet as between the parties he was not the owner of them, but simply held the title in trust for the parties, substantially as follows: That he was to sell the mining property, or some portion of it, and from the purchase

[762]

price from time to time, deduct a sum sufficient to repay to him all sums paid out by him, either to the Morrells or for the benefit of the mining properties and to compensate him for his services as an attorney in behalf of the defendants Morrell. After the repayment of these sums and the payment of the expenses of the sales, the sums remaining were to be divided equally between the parties. If after such repayment any property remained unsold, it was to be held by defendant Beggs, one-half to belong to him and the other half to the defendants Morrell. By the terms of this agreement it is provided that it was made “in order that the respective rights of the parties” thereto, might “be definitely settled and determined.” Does it constitute them mining partners? A concise statement of the law defining mining partnerships will help us to answer this question. Such a partnership exists “when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the minerals therefrom, actually engage in working the same. ” (Civ. Code, sec. 2511.) The actual working of the mine by the joint owners is essential to a mining partnership. (22 Am. & Eng. Ency. of Law, p. 228.) The partnership arises only when the co-owners unite and co-operate in working the mine.