Nougues v. Newlands

HENSHAW, J. Plaintiff filed bis bill seeking an accounting from tbe defendants because of matters bereinafter set forth. Tbe defendant Newlands was alone served with summons, and he appeared and interposed a demurrer to tbe bill: 1. Upon tbe ground that it failed to state a cause of action; and 2. That tbe cause of action stated was barred by tbe statute of hmitations. Tbe trial court held that tbe cause of action was so barred, and rendered judgment accordingly. From that judgment plaintiff appeals. -

Tbe bill is of great length, but tbe facts essential to this consideration may be thus summarized: In January, 1874, plaintiff Nougues, Henry F. Williams, one of tbe defendants, and William C. Balston, by agreement associated themselves together in a joint venture for tbe purpose of purchasing, improving, and selling certain lands in tbe city and county of San Francisco. To this venture Balston was to contribute money to purchase the lands in a sum not exceeding one hundred and seventy-five thousand dollars. Nougues and Williams were to improve these lands by bulkheading them and filling them in, and to contribute for this purpose an equal amount of money. Balston’s interest in tbe venture was to be one-half; that of Nougues and Williams one-fourth each. Maurice Dore was to act as trustee of tbe parties, was to purchase and contract for tbe purchase of tbe'lands in bis own name, and take tbe legal title thereto. If any lands were leased, tbe leases were to be taken in tbe name of Williams [104]lor the benefit of tbe three partners. Under this agreement certain lots were purchased by Dore in his name, and contracts of purchase were made between Dore and others, Dore paying for Ealston a portion of the purchase price on the contracts. Ealston died on August 27, 1875, having on the day of his death executed a trust deed of all his property to William Sharon. Sharon accepted the trust and entered into the control and management of Ealston’s property thereunder. After Ealston’s death Dore declined to make further advances for the purchase of the lots, and so did Sharon, saving that in July and September of 1876 Sharon paid in the aggregate over eleven thousand dollars in fulfilling the terms of a contract of purchase which had theretofore been made with one Eeis, and received a deed from Eeis of the property. In November, 1875, and again in January, 1876, Sharon requested Dore to convey to him the property so held by him in trust. At all these times Sharon was fully informed of the terms and conditions of the agreement and joint venture of Ealston, Nougues, and Williams, and of Dore’s relation thereto. Dore declined to comply with Sharon’s request, again informing him of the conditions of the trust under which he held the property. On June 12, 1878, Sharon notified Dore of Ealston’s deed of trust to him, informed him that he had advanced large sums of money for the payment of balances due on contracts of purchase of portions of the land, and demanded the conveyance by Dore of the property. Dore notified Nougues, who objected to the proposed conveyance, but, notwithstanding these objections, Dore did convey to Sharon upon the fourteenth day of June, 1878, and with the deed delivered to Sharon upon Nougues’ request a notice in writing signed by Nougues to the effect that he, Nougues, was the owner of an undivided one-half of the property, and containing a statement of the terms and conditions upon which Dore held the title to the property in trust. Before the date of Dore’s deed to Sharon Nougues had acquired from Williams his interest in the venture. Nougues and Williams had at that time expended the sum of one hundred and sixty thousand dollars pursuant to the terms of their agreement.