Page:Federal Reporter, 1st Series, Volume 4.djvu/711

 FIBST NAT. BANE V. SISSSIiIi. 697 �money. That claîm was denied, and the property having been sold and the proceeds deposited in the First National Bank of Denver, this suit was brought by Foss and Hunier against Bissell and the bank to determine the right to the fund. The bank was dissatisfled with its position in the suit, and filed its cross-bill to compel the others to interplead and adjust their differences and exonerate the bank from liability. Issue was joined on that bill, but the contestants bave not acceded to its prayer otherwise than by the original plead- ings. No question is now made, however, as to the form of the issue, and none will be considered by the court. �The matter in controversy is whether, upon what took place in the purchase of the Handley interest in the mines, Bissell is in equity to be regarded as a party thereto. Out of the relations of the parties as mining partners and tenants in common, or joint tenants of the three-fourths interest in the property, as well as from the conference and agreement between Foss and Bissell in respect to the purchase of the Handley interest, it is contended that a duty arose on the part of Foss towards bis associates which was violated by him in making the purchase for Hunter and himself only. In other words, the position is assumed that relations of trust and confidence existed between the parties by which the acts of each, relating to the common property, should be controUed, and whatever was done by any of the owners should be taken to be for the advantage of ail; or that Bis- sell was too confiding and was overreached by Foss, who, while claiming to act for ail, sought to appropriate the pur-- chase to Hunter and himself. Familiar principles are in- voked in support of this position, and we shall best ascertain how far they may be applicable to the case by considering them with reference to the attitude of the parties in the several positions in which we find them in the record. And first let us put out of view their associations as mining part- ners and tenants in common, and consider whether, by the conference and agreement to purchase the property between Foss and Bissell, anything was established upon which the daim of the latter may rest. If two or more persons agree ����