Ross v. Austill

Appeal from the Fifth Judicial District, Calaveras County.

The respondent filed his complaint against the appellants on the 7th of June, 1851, stating that on the 10th of March, 1850, at Mobile, in the State of Alabama, the parties to this suit, and Henry Myers, and Daniel F. Proat, executed mutual articles of association and agreement, declaring and agreeing that the object of the association was the proceeding to San Francisco, each individual paying his own expenses; and when there, to proceed to the gold mining districts, and establish a mill and other machinery for the purpose of grinding quartz rock to procure gold; —that Austill should deliver at Stockton, or any other point at the head of navigation which might be decided most accessible to the mining districts, castings for a stamp mill, and other machinery, free of cost to the company to that point; after which, the carriage and expense of erecting the machinery, and all other expenses of conducting the work, to be at the general charge of the company, each member bearing an equal portion in labour and money; that a president and secretary should be chosen, accounts kept, &c.; that the president should act as treasurer, and pay the sums due members on the certificate of the secretary; and should also exercise a general supervision over the affairs of the company; that on the first of each month, the secretary should exhibit the earnings and expenses of the company; and after deducting expenses, pay to Austill 10 per cent, of the net earnings, as an equivalent for furnishing the machinery, and divide the remainder among the members; that Austill should not sell the machinery, except to the company; and on selling to them, he should be allowed the value of the machinery, with reference to its costs; that in case of sickness or disability of a member for a period exceeding one month, he should be entitled, during such time, to receive only one half of a share, unless he should provide an acceptable substitute; that on the vote of a majority, a member might be expelled, his accounts being made up to the end of the month; that in case a member should wish to retire before the expiration of twelve months from commencing operations in California, he should receive such equitable amount as might be agreed on between him and the company, to be paid out of the common funds; that the association should continue not less than twelve months, and as much longer as the members should then decide, at a meeting; any retiring member being subject to the provision before stated.

The complaint, (to which a copy of the articles was annexed,) averred that Proat abandoned the agreement in Alabama; that the parties to this suit and Myers arrived in California in June, 1850; shortly after which Myers abandoned the company, and returned home,—leaving only the parties to this suit members of the company; that the machinery mentioned in the articles was landed in California, and then taken to the mines at the joint expense of the parties to this suit, who acted together as partners until the 20th of August, 1850, when, meeting with no sufficient inducement to erect the machinery, the parties temporarily separated, in the hope of being better able to advance their joint interest, and with the distinct understanding and agreement that Rowe should go to San Francisco, Austill to Carson’s Creek, and the plaintiff to Sonora, in order to obtain information, and discover or purchase mines, with a view to resume operations under the articles; that while the plaintiff was seeking to discover mines for the joint benefit, the defendants procured an interest of two-sevenths in a certain quartz vein, (describing it,) called “ Carson Creek Mine,” originally discovered by one Hance, and being worked, at the time of filing the complaint, by the defendants, and Hance, Murphy, Smith, and others unknown to the plaintiff; that the said machinery belonging to the company was the principal inducement with Hance to give the defendants an interest in said mine; that the defendants, after becoming interested in said mine, repeatedly acknowledged the plaintiff’s interest as a partner; but afterwards, in bad faith, and with intent to defraud the plaintiff, refused to allow him to exercise any control over the mine, or to participate in its profits, and refused to account, denying that the plaintiff was a partner, or had any interest in the mine; that the defendants had already received, as their share of the profits, upwards of §200,000, to one-third of which the plaintiff was entitled; as also to one-third of the two-sevenths of the mine; and that the plaintiff had spent most of his time in the service of the company; but had realized nothing to divide with the other parties. Prayer, that the defendants set forth, under oath, an account of all moneys realized; that the plaintiff have judgment against them for one-third thereof; that the partnership be dissolved, and the interest of the company in the mine be sold, and the proceeds divided; and for general relief; and for a receiver, and an injunction.