Rucker v. Wheeler

The cause of action set out in the first count of the complaint is that the defendant in error, who was the defendant below, agreed with the plaintiff in error that if the latter assisted the former and his agents in purchasing the interest of Julia Webber in the Emma lode mining claim at a price not exceeding $40,000, he should receive for his services the sum of $10,000, but only $5,000 if the defendant was compelled to pay more than $40,000 for said interest. The complaint alleges that, in consequence of services rendered by the plaintiff under that agreement, the defendant was, on the 22d of November, 1884, enabled to buy said interest at a sum exceeding $40,000, whereby the latter became indebted to plaintiff in the sum of $5,000. The defendant in his answer denies that he made any such agreement as that alleged, or that he was enabled to purchase the interest of Julia Webber by reason of any services rendered by the plaintiff. The second count of the complaint sets forth the following cause of action: On the 29th of November, 1882, one Henry Webber was the owner of an undivided 20-60 of the Emma lode mining claim in Colorado, one Archie C. Fisk being the owner of 28-60, and Charles F. Abbey the owner of the remaining 12-60. In 1883 Fisk commenced proceedings under the statutes of the United States in advertising the interest of Webber 'out of said claim' on account of alleged non-payment of assessment work done by Fisk on said claim in 1882. After the period of the publication of said advertisement, Fisk asserted ownership of 48-60 of said mining claim. On the 20th of November, 1883, Fisk leased to Abbey said 48-60. Webber, desiring to secure possession of said claim, procured from Abbey, November 26, 1883, a lease in the name of Nevitt, his brother-in-law, of an undivided 16-60, the latter being the nominal, and Webber the real, owner of the lease. On the 18th of April, 1884, the defendant, Wheeler, by conveyances, had become the owner of all the interest claimed by Fisk. During the same month Webber commenced suit against the grantor of Wheeler, and the administrator and heirs at law of Abbey, to recover his interest of 20-60 in said premises. On the 28th of April, 1884, Webber gave to the plaintiff, Alterson W. Rucker, a quitclaim deed in and to an undivided one-twelfth interest (5-60) in said mining claim, as his compensation for legal services rendered and to be rendered in the prosecution of said action. In the same year Wheeler and the administrator and heirs at law of Abbey commenced an action against Nevitt for the possession of said premises, and to restrain him and his agents from working and mining the same. At the time the quitclaim deed was made to Rucker it was agreed between him and Webber that Rucker's interest would not be subject to the burden of the lease made by Abbey to Nevitt. In consideration of that deed and agreement, the plaintiff entered upon the performance of the legal services necessary to establish e bber's title to said interest of 20-60. On the 26th of September, 1884,-the defendant being then the owner of both the Abbey and Fisk interests in said claim,-the plaintiff, for and on behalf of Webber, and acting nominally for Webber, together with the defendant's attorney, prepared a written agreement, which was signed and executed by Webber, Nevitt, and the defendant. It had for its object the compromise of the pending litigation between the parties. That agreement was as follows:

'This agreement, made and entered into on this 26th day of September, A. D. 1884, by and between J. B. Wheeler, of the first part, and C. E. Nevitt, of the second part, and Henry Webber: Witnesseth, that whereas the said party of the first part is the owner of certain interests in the Emma mine, situate in Pitkin county, state of Colorado, and a suit is now pending in the district court of said county on behalf of said Webber against said party of the first part and others for a one-third (1/3) interest in said mine; and whereas another suit is pending in said court in behalf of the said J. B. Wheeler and others against the said second party to recover possession of said mine; and the said second party in his defense thereto claims to hold a lease of said mine expiring on the 20th day of November, 1884, in which said suit the district judge of said court has made an order allowing the possession of said property to remain in the hands of said second party during the period of said lease, two-thirds (2/3) of the proceeds thereof to be paid to John Hulbert, receiver, to be held by him to await the determination of said suit or the further order of the court, less a royalty of fifteen (15) per cent.; and whereas said party of the second part has been for some time in the possession of said mine and has extracted a large quantity of ore, a greater portion of which is now on hand undisposed of; and whereas said second party, being desirous of compromising and settling said actions, it is agreed, in consideration of the premises, the said first party will, upon the ensealing of these presents, make, execute, and deliver a sufficient deed of quitclaim to said Webber, his grantees or assigns, for an undivided one-fourth (1/4) interest in said mine, and said Webber, on receipt of said deed, agrees to release, waive, and does hereby release and waive, unto said party of the first part all claims which he may have to any further or other interest in said property. And the suit aforesaid between the said parties to be dismissed upon each party paying their own costs therein. That the suit aforesaid between said first party and said second party shall likewise be dismissed upon the same terms, and the said second party hereby releases and waives to said first party all right and title as to said lease, save and except a one-third (1/3) interest therein, and at the end of said term to release and surrender the whole thereof, and possession thereunder, peaceably to said owners, their grantees or assigns. It is further agreed that the proceeds of the ore now on hand, after payment of the cost of production, and after the payment of the costs of hauling and treatment, shall be divided as follows: The said party of the second part to receive one-third (1/3) thereof, less a royalty of fifteen per cent. on said one-third interest, according to the terms set forth in his said lease, and the said party of the first part to receive three-fourths (3/4) of the remaining two-thirds, (2/3,) and the said Webber, his grantees or assigns, one-fourth (1/4) of the said remaining two-thirds, (2/3,) and during the remainder of the terms of said lease, namely, up to and inclusive of the 20th day of November, A. D. 1884, the proceeds of the mine to be divided in the same manner and in the same proportions aforesaid, such division also to apply to and include the said royalty to be paid by the second party as aforesaid. And it is mutually agreed by and between the parties hereto that during the remainder of the term of said lease the said mine shallb e under the superintendence for Joseph Ruse, who shall operate, work, and develop the said property for the mutual interest of all the parties hereto, and with a view to developing and preserving the said property as a workable mine as well as the production of ore therefrom, said work to be done by said Joseph Ruse in as economical a manner as possible, and to limit the production therefrom so as to correspond to the expense incident to mining, and the price for which said ore can be sold; and any failure upon the part of said Joseph Ruse to comply with the conditions herein mentioned shall be the cause for removal from such position of superintendent. The said Joseph Ruse, during his continuance as superintendent, shall be under the advisory control of said first party. And the said second party and the said Webber shall have the right at all times to make suggestions in the matter of the authority of the said party of the first part respecting the management of the said mine. In witness whereof we hereto set our hands and seals on the day and year first herein above written.

J. B. WHEELER. [Seal.]

'C. E. NEVITT. [Seal.]

'HENRY WEBBER. [Seal.]'

At the time this agreement was executed the defendant, the complaint alleges, 'knew that said Nevitt was representing the said Webber, and that said lease was in fact owned by the said Webber, and that plaintiff was entitled to 5-10 of the proceeds of said mine out of the 10-60 thereof awarded to said Webber under and in virtue of said agreement; that, in pursuance of said agreement, the managment and control of the working of said mine was given over to the said defendant, who recovered the proceeds, thereof, and placed the same in his banking-house to the credit of the mine.' On the 21st of October, 1884, the defendant purchased said leasehold interest from Nevitt, who was acting for Webber as aforesaid, and took an assignment thereof to himself; that by virtue of said purchase he became entitled to 20-60 more of the ore then on hand, and 20-60 of that produced thereafter and until November 21, 1884. On the 17th of November, 1884, Henry Webber sold his interest, 10-60, to his wife, who, November 22, 1884, sold and conveyed to the defendant. Up to the time of Mrs. Webber's sale to the defendant, a large sum of money was realized from the sale of the ore, and there was on hand, unsold, a large quantity taken from the mine subsequent to September 26, 1884, the money thus realized being in defendant's bank to the credit of the mine. The plaintiff claims that at the time the defendant purchased said leasehold interest there was due to him, on account of his 5-60 out of the 10-60 of the proceeds of the mine accorded to Webber and his grantees and assigns by the agreement of September 26th, a balance of $2,262.30; that on the same basis there was due him $2,630.66 at the time of defendant's purchase of Mrs. Webber's interest; which sums the defendant placed to his own account, and converted to his own use. The complaint further alleges: 'That at the time of the purchase of said leasehold interest, and at the time of the purchase of said Julia Webber's title by the defendant, the said defendant well knew that the plaintiff and the said Henry Webber had agreed at the time of the plaintiff obtaining his title aforesaid that plaintiff's interest was not subject to the burden of said lease, and that he, the said plaintiff, was to receive out of the interest of the said Webber, as the grantee of said Webber, his full one-twelfth share and interest in the ore produced and to be produced from said mine, and he well knew that by virtue of the terms of said agreement of the 26th day of September, 1884, plaintiff was entitled to his five-sixtieths of the proceeds of all ores extracted from said mine out of the ten-sixtieths aforesaid accorded to the said Webber by virtue of said agreement; that by virtue of the sale made by said Henry Webber to the said Julia Webber no part of the proceeds of said mine theretofore produced were sold to said Julia Webber; an that when said Julia Webber received said conveyance she also knew that plaintiff's five-sixtieths interest in the proceeds of the ore theretofore extracted from said mine was to come out of the ten-sixtieths thereof accorded to said Henry Webber under and by virtue of said agreement of the 26th of September, 1884; and that she also knew and understood that by virtue of said agreement made between the plaintiff and said Henry Webber at the time of his conveyance to said plaintiff that his, said plaintiff's, interest was not subject to the burden of said leasehold interest, and that said leasehold interest was owned and controlled by said Henry Webber.' Such is the case made by the complaint.

The defendant, in his answer, admits many of the allegations of the complaint, but denies that at the time of the making of the deed to him by Webber, or at any other time, it was agreed between them that the plaintiff's interest would not be subject to the burden of the lease made by Abbey to Nevitt, or that he, defendant, knew, either at the time of the signing and execution of the agreement of September 26, 1884, or at any other time, that Nevitt was representing Webber, or that said lease was owned by Webber, or that the plaintiff was entitled to 5-60 of the proceeds of the mine out of the 10-60 awarded to Webber under said agreement. He admits that up to the time of the sale to him by Julia Webber of the interest previously held by her husband, 'there had been a large sum of money realized from the sale of ore taken from the said mine, together with a large amount unsold,' and that 'the moneys belonging to said interests were by him purchased with the said interests, and that he consequently realized the amount thereof.' But he denies that any part or portion of the said proceeds of ores belonging to the plaintiff were even withheld from him. He denies that at the time of his purchase from Julia Webber that he ever knew, or that Henry Webber and plaintiff ever agreed at the time the latter got his title, 'that plaintiff's interest was not subject to the burden of said lease, or that plaintiff was to receive out of the interest of said Webber, as the grantee of said Webber, his full 1-12 share or interest of the ore produced or to bs produced from said mine.' He denies that 'he well knew, or knew at all, either by virtue of the terms of said agreement of the 26th of September, 1884, or at any other time, that the plaintiff was entitled to 5-60 or any other amount of the proceeds of ores extracted from said mine out of the 10-60 accorded to said Webber by virtue of said agreement, or any other sum; but, on the contrary, alleges that the said plaintiff was to receive his proportion, to-wit, 5-60 of the proceeds of all of said ores, less the proportion which the 5-60 interest should bear of the burden of the said lease upon the said 1-3 interest in said mine.' He denies that Julia Webber knew or understood that by virtue of the agreement of September 26, 1884, or of any agreement, the plaintiff's interest was not subject to the burden of the said leasehold interest, or that said interest was owned or controlled by said Henry Webber. [92]

''A. W. Rucker, pro se. T. M. Patterson and C. S. Thomas'', for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.