Dorsey v. Newcomer

California Supreme Court Jun 15, 1898 No. Sac. No. 395Published

Before: Temple

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Holding. The court held that the judgment could not be sustained because the findings of fact were materially contradictory regarding which mining claims were actually worked by the partnership, and the trial court improperly ruled on issues of forfeiture not raised by the pleadings.

Issues

Whether the findings of fact regarding which mining claims were worked by the partnership are contradictory and insufficient to support the judgment.
Whether the trial court erred in making findings regarding the forfeiture of mining claims that were not at issue in the pleadings.

Disposition. reversed and a new trial ordered

Quotations verified verbatim against the opinion

“Inasmuch as the findings contradict each other in respects which are material in determining the relief which should be awarded, a new trial must be had.”

“The finding as to the forfeiture of some of the mining claims is clearly outside of the issues in the case.”

Synopsis

Mining Partnership—Working of Mine ín Common—Partnership Property.—The partnership property of a mining partnership not formed by actual agreement, but by the actual working of a mining claim owned or acquired by two or more persons for the purpose of working the same, under section 2511 of the Civil Code, consists only ■of the mining ground so owned or acquired and actually worked, unless other property has been acquired by the partnership for the purpose of aiding in working it, such as a mill or millsite, or other mining property has been acquired by it for the purpose of working it with the mining ground already being worked, and so situated that it can be worked with the original claim as parts of one mine, or has been acquired with partnership funds.

In.—Distinction in Code—Agreement for Work upon Contingency.— Section 2511 of the Civil Code, defining a mining partnership, distinguishes between mining ground owned or acquired for the purpose of working it, and such ground actually worked; and it is ■only the latter that in general can be regarded as partnership •property when not acquired by the partnership or with partnership funds. A mere agreement to work a mining claim in the future upon the happening of a contingency does not make it partnership property.

In.—Action for Dissolution—Contradictory Findings—New Trial.— Where the court, in an action for the dissolution and settlement of a mining partnership, has made contradictory findings as to the actual working of more than one of the mines described in the complaint, by the partners, and it is not distinctly found that other mines worked by members of the partnership were worked by the partnership, a decree of sale of more than one of the mines must be reversed and a new trial ordered.

Id.—Forfeiture of Mines—Findings Outside of Issues.—Where no allegations have been made, or issues formed as to the forfeiture of any of the mines described in the complaint, a finding as to such forfeiture must be disregarded as outside of the issues.

TEMPLE, J. This action was brought to obtain an accounting in a mining partnership, a dissolution of the copartnership, the payment of the partnership debts and distribution of any surplus funds remaining.

In the complaint it is alleged that on the tenth day of June, 1895, Caleb Dorsey and J. T. Newcomer were the owners of ten designated mining claims, with quartz mill, tools, etc. Caleb Dorsey owned an undivided three-fourths’ interest and Newcomer the remaining one-fourth. A conveyance from Caleb Dorsey to plaintiffs Thomas B. Dorsey, Edward W. Dorsey, and E. Snyder Dorsey of a part of his interest February 5, 1896, is averred, and also that Caleb Dorsey died April 21, 1896, and plaintiff E. L. Ewing is administratrix of his estate. It is then charged that debts were incurred in working, operating, and developing said mines and mining property.

The findings of the court are generally in accordance with the complaint, but it is found as follows:

“That plaintiffs or their grantors or predecessors and defendants have not, at any of the times in the complaint mentioned, engaged in working upon or extracting any mineral from any of the said mining claims, other than the ‘Snell Claim’ or mine, and all the mining work in which they joined or did during the time that they were co-owners in the said mines and mining claims was done upon said ‘Snell Mine’ and mining claim.

' “That said ‘Snell Mine’ and mining claim is not adjacent to any of the other mines or mining claims described in the complaint, but is situated wholly separate from and does not, on any side thereof, touch upon or adjoin any other of said mines or mining claims.’’

Notwithstanding this absolute finding that the alleged partners were not at any time engaged in working any of the mining claims except the Snell claim, and that all the work done by them as copartners was done upon said claim, in finding 6 the [215]court finds that Caleb Dorsey and J. T. Newcomer had done work upon all the claims; that Caleb Dorsey, and all the parties plaintiff and defendant, had been working the Snell Quartz mine and the True Business mine.

In finding 7 it appears that the partnership had forfeited all mines except the Snell and True Business and the Horse Shoe, which last is wholly included in the Snell.

In the decree it is ordered that the Snell mine, the True Business mine, and a certain quartzmill be sold to pay the debts of the partnership.

Dorsey v. Newcomer

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