Chung Kee v. Davidson

The Court. The defendants W. Cook and A. Cook executed a deed which, upon its face, purported to be an absolute conveyance of certain property therein described, consisting in part of some mines, which deed was in fact a mortgage to secure certain indebtedness [523]from the Cooks to the defendants L. Davidson and S. C„ Peek. Afterwards, the latter persons executed and delivered to the former an agreement, in writing, which stipulated that if, by a certain time, the indebtedness secured by the mortgage deed should be paid, L. Davidson and S. C. Peek would reconvey the property set out therein to the Cooks. The agreement contained, among other things, a provision that the Cooks should retain the possession and management of the mines mentioned in the mortgage deed, and that they were to turn over to L. Davidson and S. C. Peek the entire result of each “ clean-up ” of the “ flumes and under-currents of the mines,” the result of which “ clean-ups ”—that is, the precious metals extracted therefrom—was to be applied by those to whom “ turned over,” “ to the defraying of the expenses of running and working said mines,” and “the payment of all promissory notes, obligations, and accounts of indebtedness, of whatsoever nature, due said parties of. the first part,”—that is, L. Davidson and S. C. Peek,—“ and the firm of Davidson and Peek.” L. Davidson was not a member of the firm of Davidson & Peek; that firm, it appears, was composed of M. Davidson and S. C. Peek. While the Cooks, under that agreement, were working the mines, they became indebted to certain Chinamen for labor done and laborers furnished in such working, and they gave to the Chinamen a written statement of such indebtedness. These claims the Chinamen to whom they were given, and in whose favor they originally stood, transferred properly to the present plaintiffs, who brought this action for the amount due on the assigned claims for work and labor done and furnished in working and running the mines, alleging that, under the terms of the agreement or written contract formerly mentioned, they were entitled to receive those amounts from L. Davidson and S. C. Peek, and the Cooks, out of certain “ gold-dust,” the result of the “ clean-up ” of July, 1884, which yas deliv[524]ered to L. Davidson in accordance with the terms of the stipulation, and which amounted in value to the sum of $5,564.40. From that sum it seems that Davidson paid the firm of Davidson and Peck, for goods, wares, merchandise, etc., furnished to the Cooks, and to others upon their order, the sum of $2,794.28, and took therefrom for himself the sum of $1,152.97 on account of advances of money and goods made by him to the Cooks, and that he also supplied towards the payment of a note for $2,000, given by the Cooks for money advanced to them by him the previous year, the sum of $1,700. He also paid, about a month afterwards, out of his own money, to a man named Guy, the sum of $425, the amount of a lien for work done by Guy for the Cooks, in the mines aforesaid, in the year 1883. The Cooks did not defend the action, and judgment by default was rendered against them for about $2,100. The action, as to the defendants L. Davidson and S. C. Peek, was tried before a jury, who brought in a verdict for the plaintiffs for $1,900, without interest, upon which a judgment was duly rendered, from which, and an order refusing to grant them a new trial, L. Davidson and S. C. Peek have appealed.