Downing v. Murray
Before: McFarland
Synopsis
Sale of Mining Claims—Accounting and Compromise between Co-owners—Action to Annul Settlement — Nonsuit.—Where several mining claims and parts of claims were sold together, and a dispute arose as to the respective interests of the co-owners of the claims, and as to the disposition to be made of the proceeds of the sale, and also as to items of expense incurred, which disputes were finally settled and adjusted, and the money distributed, upon a full accounting had, and compromise made, between them, with full knowledge of all the facts, such settlement cannot be set aside at the will of either party, but only upon a showing of fraud, mistake, or undue influence, and, where no such showing is made, the plaintiff, in an action to set aside the settlement and to open up the account, is properly nonsuited.
Id.—When Nonsuit Should be Granted—Appeal—Presumption—Discretion.—The judge presiding at a trial by jury should grant a nonsuit where a verdict in favor of plaintiff should be set aside for want of evidence to support it, and, in the absence of a jury, where the evidence is insufficient to support a judgment for the plaintiff, and where a nonsuit is granted, it is to be presumed that the judge acted on this principle, and his action will not be disturbed on appeal where there is no reason for holding that he abused his discretion in concluding that the evidence was insufficient.
McFarland, J. After the plaintiff had introduced all his evidence in the court below the defendants moved for a nonsuit. The motion was granted and judgment ordered for defendants. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.
The record is quite voluminous, and the arguments of counsel are elaborate; but, under our views of the case, it is not necessary for the length of our opinion to be proportionate to that of the transcript or the briefs.
It is averred in the complaint that the relation existing between the parties to the action with respect to the moneys and property involved was that of a copartnership. This averment is denied in the answer; and a great deal of the arguments of counsel is directed to that question. In our opinion the relation between the parties, as shown by the evidence, was not that of a co-partnership; but we do not attach as much importance to that fact as is claimed for it by defendants, who contend that if there was no copartnership, then, no matter what the other facts were, the action must fail. The main purpose of the action was to set aside and annul a certain settlement made on December 2, 1891, upon an account stated, and to open up said account; and the facts stated in the complaint are not sufficient, leaving out of view the averment of copartnership, to warrant the relief asked as to said settlement.
The plaintiff, Downing, and the defendants Murray, Treadwell, Fuller, and Carroll, were the co-owners of certain mining claims and lands, situated in the terri[458]tory of Alaska, the titles thereto standing in the name of Murray. The first of these claims was acquired about the year 1882, and is known as the “ Bear’s Nest.” Not long afterward another claim was acquired called the “ Douglas Island.” From time to time certain other claims in the vicinity of the two above named were acquired by at least some of said persons. Each of these latter claims had a name, but it is sufficient here to call them the “ outside claim».” The record title to all the claims stood in Murray. He made a conveyance of one-fifth of the Bear’s Nest and the Douglas Island to the plaintiff Downing, and to each of. the others; but plaintiff has no paper title to any of the outside claims.
About the year 1886 efforts were commenced to effect a sale of these claims, or parts of them. It is not necessary here to trace the various negotiations which resulted in such sale; it is sufficient to say that in the year 1888 a sale was effected, through the agency of a corporation called the Alaska Gold Company, of the Bear’s Nest, and of certain described parts of said outside claims. (The Douglas Island was not included in the sale.) Conveyances were made to the Alaska Gold Company of the property sold by the said defendant Murray. The purchase price was $750,000 in cash, and about $500,000 in stock and bonds of said corporation. However, $100,000 of the $750,000 was to remain in escrow pending the hoped-for repeal of an act of Congress, known as the “alien act”—the real purchasers being, mostly, Englishmen. This $100,000 is still in escrow, and need not be further considered. Neither is it necessary to consider the matter of the stock and bonds. Of the $750,000, $650,000 was paid in cash, or its equivalent, to the defendant Treadwell; and it -was the understanding of all the parties that Treadwell was to take charge of the money, pay off all expenses incurred in handling and selling the property, and, after settling all such expenses, to divide the balance between the parties according to their respective shares and rights. This money was paid to Treadwell some time in
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