Clark v. Ritter

Appeal from a judgment for the defendant Hayward and from an order denying a new trial in the Superior Court of Placer county. Myres, J.

The complaint alleged, in effect, as follows: About May 1, 1871, George Reamer, Jennie Ritter, Eugenie Ritter, and John Brown owned and were working, as partners, a mining claim in Placer county, California, known as the “Jersey Claim,” and continued to hold and work said claim, as partners, until May 29, 1877, when Morgan Howell and others succeeded to the interest of Reamer (an undivided five-eighths). These owners continued to work said claim, as partners, until June 6, 1878) when said Brown sold and conveyed his interest (an undivided two-eighths) to defendant ■ Hayward; and said claims continued to be worked in partnership until the twelfth day of the same month, when Hayward sold and conveyed the interest acquired from Brown to Fred Howell, Thomas Rees, Morgan Howell, and Lewis Abrahams; and said claims continued thence to he worked in partnership by the owners until July 1, 1878, when the parties last named sold and conveyed an undivided interest in said claim to Peter Edwards and William Llewellyn; and the owners continued thence to work said claims, as partners, until November 1, 1879, when all of the owners, except Jennie and Eugenie Ritter (the latter of whom had become, by marriage, Eugenie Housaye), sold and conveyed their interest to the plaintiff; and from that time to the commencement of the suit, the said Ritter, Housaye, and the plaintiff, continued to work the said claim as partners.

At the time of the plaintiff’s purchase large amounts of money had been spent by the several owners in working the mine, the claims for which were assigned to the plaintiff. There were also assigned to him debts due from the partnership to various parties . for work and labor, and he himself, after his purchase, also expended a large amount upon the mine. On the fourteenth of February, 1877, Sarah Eeamer (then the owner of an undivided five-eighths of the claim) mortgaged her interest to Hayward; and on the twenty-ninth of May, 1877, Howell and others, who had succeeded to the interest of Sarah Eeamer, mortgaged the interest thus acquired to the plaintiff, who, before he bought into the claim, assigned his mortgage to defendant Becket. Afterwards, and after the plaintiff had purchased, Hayward commenced an action to foreclose his mortgage, in which Becket intervened; and such proceedings were had that judgment of foreclosure was entered, and Hayward, on the twenty-sixth of July, 1880, purchased at the foreclosure sale and received his certificate. The complaint prayed for an accounting, and that the plaintiff be adjudged to have a lien on the said property for the partnership debts. The answer of defendant Hayward denies that the owners of the “Jersey Claim” ever worked the same as partners to any later period than the month of August, 1875, and avers that from that date to May 29,1877, no partnership work was done on the claim; and also denies that the defendant from the sixth to the twelfth day of June, 1878, or at any time, ever worked the said claim in partnership with the alleged other owners, and with reference to the conveyance by Brown to him on the sixth day of June, 1878, he was a mere formal party and had no beneficial interest, but took the same in trust for certain of the owners, to whom he conveyed it. From the statement it appears that evidence was introduced to the following effect: