Donovan v. Stevens

MELVIN, J.

Defendant appeals from a judgment in favor of plaintiff by which it was determined that three thousand five hundred dollars on deposit with the American National Bank of San Diego, California, in the name of Theron Stevens, trustee, and $4,-180.35 on deposit with the John S. Cook & Company Bank of Goldfield, Nevada, in the

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name of Theron Stevens, trustee, are held in trust for said plaintiff, James Donovan, and also directing said Theron Stevens, individually or as trustee, to assign, transfer, and set over to said plaintiff all right, claim, and interest therein.

According to the allegations of the complaint plaintiff is an attorney at Iaxv, admitted to practice in all the courts of Nevada. In April, 1905, the people constituting the inhabitants of Goldfield, Nevada, and occupants of public lands embraced xvithin the said toxvn of Goldfield and South Goldfield assembled in public meeting and organized the “Squatters’ Association of Goldfield, Nevada, ’ ’ for the purpose of procuring and defending an application for the public lands so occupied by them as a town site under sections 2387, 2388, and 2389 of the United States Revised Statutes (Comp. Stats. 1916, secs. 4791-4793), and for the purpose of contesting certain alleged mineral claims purporting to cover some of said lands. By law the judge of the district court of Esmeralda County was constituted trustee for the inhabitants of the town and occupants of the public lands for the purpose of making such application. He made and filed a certain amended application (xvhich had been prepared by plaintiff) for the entry of the lands embraced within Goldfield and South Goldfield, naming respondent in such application as his attorney. About the month of May, 1907, the said “Squatters’ Association,” in mass meeting assembled, by unanimous vote, authorized a committee then and there named to enter into an agreement with the plaintiff whereby he would undertake as attorney for applicants to procure a town-site patent for the lands embraced within Goldfield and South Goldfield. The inhabitants, on their part, agreed to pay plaintiff ten dollars per lot for the issuance of such patent. There were, approximately, four thousand three hundred lots in the tract involved. Plaintiff prosecuted the applications and contested the mineral claims, fully performing his contract, and in November, 1909, the United Statés issued a patent to the land embraced within the town-site. In January, 1909, defendant was appointed judge of the district court of Esmeralda County and thereafter continued the administration of the trust for the inhabitants of Goldfield and South Goldfield. On the issuance of the patents plaintiff presented his contract for ten dollars a lot to the trustee, who, believing the amount xvas excessive, suggested a modification