Hummingbird v. Ullman

MARKS, J. This is an appeal from a judgment dissolving a mining partnership and awarding plaintiff $2,150 for breach of contract.

The complaint in this action is primarily one for declaratory relief. There are allegations which might support an accounting between the parties.

Besides admitting the due execution of contracts, out of which the mining partnership arose, the answer denied the material allegations of the complaint. Defendant also filed a cross-complaint which contained allegations evidently intend[231]ed to support an action for damages because of fraud, the recovery of $350 loaned by defendant to plaintiff, and the recovery of the value of a jack hammer alleged to have been loaned to plaintiff and not returned.

Both the pleadings and the evidence in this case leave much to be desired. Counsel for plaintiff, with much justification, thus describes them in his brief:

“A ‘blunder-buss’ is a shotgun having a barrel which flares or ‘opens out’ at the muzzle like a trombone or a French horn. You load it; then you go to the edge of a field or the timber, point it in the desired direction, shut your eyes, pull the trigger, and then go around the neighborhood and ‘see’ whether you have killed or hit any game. The pleadings and the evidence in this case are of that kind,—difficult to tell what was aimed at, and what, if anything, was hit.”

The present counsel for defendant did not represent him at the trial.

Under date of February 1, 1941, L. P. Scaroni, as lessor, and Mavro Hummingbird, as lessee, entered into a contract whereby the lessor leased to the lessee for the term of five years certain copper mining claims in San Bernardino County upon a royalty basis. The lease provided for continuous mining operations and prohibited the lessee from assigning the lease in whole or in part, and from subleasing the property without the written consent of the lessor. It also contained forfeiture clauses. The mining claims contained a lode and also a liquid carrying copper in solution.

Under date of February 1, 1941, but executed several days thereafter, Mavro Hummingbird assigned to defendant a forty-nine per cent interest in the lease in consideration of $1,000 which was paid him.

Defendant agreed to furnish and install the necessary equipment for extracting copper from the solution, not to exceed a cost of $9,000. Profits and losses were to be shared by the parties in proportion to their interests in the mine.