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v. Sharkey, 104 Cal. 279, 37 Pac. 939; Bran- | Rangeley v. Spring, 21 Me. 130; Horn v. son v. Oregonian R. Co. 11 Or. 161, 2 Pac. Cole, 51 N. H. 287, 12 Am. Rep. 111. 86; Lee v. Richmond, 90 Iowa, 695, 57 N. W.

On petition for rehearing. 613; Steel v. Miller, 40 Iowa, 403; Berk Respondent and Willard White were partshire v. Peterson, 83 Iowa, 197, 48 N. ners, associated together under the contract W. 1035; Head Bros. v. Thompson, 77 Iowa, of September 7, 1899; the testimony in ques267, 42 N. W. 188; Bunn v. Stuart, 183 Mo. tion consists of admissions and declara375, 81 S. W. 1091; Hastings v. Vaughan, tions made by one partner to the other 5 Cal. 315; Gilmore v. Morris, 13 Mo. App. during the partnership, and concerning the 114; Shaw v. Cunningham, 16 S. C. 631; very matter for which the parties were assoLindsay v. Lindsay, 11 Vt. 621; Hurlburt v. ciated together. Wheeler, 40 N. H. 73; Den ex dem. Farlee The utmost good faith is due from every v. Farlee, 21 N. J. L. 279; Stoney v. Win- member of a partnership towards every terhalter, 8 Sadler (Pa.) 492, 11 Atl. 011; other member; and if any dispute arises Stephens v. Buffalo & N. Y. City R. Co. 20 between partners touching any transaction, Barb. 332.

by which one seeks to benefit himself at the There can be no delivery without an ac- expense of the firm, or the other member or ceptance.

members, "he will be required to show not Beardsley v. Hilson, 94 Ga. 50, 20 S. E. only that he has the law on his side, but 272; Hall v. Hall, 107 Mo. 101, 17 S. W. that his conduct will bear to be tried by the 811; Guggenheimer v. Lockridge, 39 W. Va. highest standard of honor.” 457, 19 S. E. 874; Moore v. Flynn, 135 Ill. Roby v. Colehour, 135 Ill. 300, 25 N. E. 74, 25 N. E. 844; Metcalfe v. Brandon, 60 777; Shumaker, Partn. pp. 235–242; 22 Am. Miss. 685; Koehler v. Hughes, 148 N. Y. & Eng. Enc. Law, p. 114. 507, 42 N. E. 1051; Bremmerman v. Jen Appellant stands in the shoes of White. nings, 101 Ind. 253; Com. v. Jackson, 10 White repeatedly stated to his partner and Bush, 424; Meigs v. Dexter, 172 Mass. 217, associate Whitney, the man to whom it was 52 N. E. 75; Hawkes v. Pike, 105 Mass. 56). his duty fully and truthfully to disclose the .7 Am. Rep. 554; Comer v. Baldwin, 16 facts, that the deed was given to him in Minn. 172, Gil. 151; Stephens v. Buffalo trust; that there were restrictions thrown & N. Y. City R. Co. 20 Barb. 332; Steffian around it; that it was not to be used until v. Milmo Nat. Bank, 69 Tex. 513, 6 S. W. the conditions of the contract of December 823; Wheeler & W. Mfg. Co. v. Briggs, 25th had been conıplied with. (Tex.) 18 S. W. 555; Wiggins v. Lusk, 12 The rule excluding parol testimony to Ill. 132; Woodbury v. Fisher, 20 Ind. 387, show conditions attached to a deed was not 83 Am. Dec. 325; Doe ex dem. Herbert v. intended to be binding on the grantee so as Herbert, 1 Breese (II.) 278, 12 Am. Dec. to bar him from showing that there were 192; M'Gehee v. White, 31 Miss. 41; conditions intended which were, in fact, Deere v. Nelson, 73 Iowa, 187, 34 N. W. against his interest. 809; Higman v. Stewart, 38 Mich. 513;

The admissions and declarations against Jummel v. Mann, 80 Ill. App. 288; Stevens interests made by White are admissible to v. Stevens, 150 Mass. 557, 23 N. E. 378; show that he took the deed of January 25th, Leppoc v. National Union Bank, 32 Md. 1900, with certain restrictions and condi

tions. 136; Kearny v. Jeffries, 48 Miss. 343; Bul. litt v. Taylor, 34 Miss. 741, 69 Am. Dec.

If Beery conveys to White on condition

that White shall convey to a corporation, 412; 2 Washb. Real Prop. 581; Tuttle v.

which shall execute certain bonds, make Turner, 28 Tex. 759; Hulick v. Scovil, 9 Ill.

certain payments to Beery, and construct 159. There will be no presumption of accept- then, if White declines to carry out the con

certain improvements upon the land; and ance on the part of the grantee where a

ditions, refuses to convey to the corporaburden would be imposed upon him by such tion, refuses to pay the money or issue the presumption, as the payment of a consid- bonds but transfers the property to Dewey eration. In such cases the acceptance must in direct violation of the conditions on be clearly proved.

which the transfer was made, and the latGifford v. McCloskey, 38 Hun, 350; Jef. ter takes with full notice of the conditions, ferson County Bldg. Asso. v. Heil, 81 Ky. -cannot Beery, or triose claiming under 513; Rittmaster v. Brisbane, 19 Colo. 371, him, maintain an action under 8 4538, Rev. 35 Pac. 736; 3 Washb. Real Prop. 6th ed. $ Stat. 1887, against the pretended claim of 2160.

Dewey? White is estopped from asserting his se Appellant is estopped, by the established cret equities against Whitney.

rules of estoppel, from asserting title in Bigelow, Estoppel, p. 547; Ewart, Estop himself. pel, p. 96; Davis v. Har.dy, 37 N. II. 65; 22 Am. & Eng. Enc. Law, p. 114; Gal

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braith v. Lunsford, 1 L. R. A. 522, and note, it is this brief that respondent seeks to 87 Tenn. 89, 9 S. W. 365; Dickerson v. Col. have stricken from the files. grove, 100 U. S. 578, 25 L. ed. 618; Hen- Respondent has furnished us with a great shaw v. Bissell, 18 Wall. 255, 21 L. ed. 835; many authorities to the effect that a failure Continental Nat. Bank v. National Bank, on the part of the appellant to assign errors 50 N. Y. 575; 2 Pom. Eq. Jur. 265.

is fatal to the appeal, and that in such a That White did not execute a formal case the appellate court cannot, and will assignment of this contract to respondent is not, examine the transcript for the purpose wholly immaterial, as equity regards that of ascertaining whether or not error has as done which ought to be done.

been committed. Purdy v. Steel, 1 Idaho, 1 Pom. Eq. Jur. $$ 363-377; 11 Am. & 216, holds that “all exceptions taken in Eng. Enc. Law, p. 180.

the court below will be treated as waived, Equity will treat the person in whose unless the matters so excepted to are asfavor the act should be performed as clothed signed as error in this court;” and from with the same interest, and entitled to the the opinion in that case it seems that no same rights, as if the act were actually assignment of error was ever made, either performed.

in the trial court on motion for a new trial, 16 Cyc. Law & Proc. pp. 135, 136; Sour- or contained in the statement, or enumerwine v. Supreme Lodge K. of P. 12 Ind. ated in the brief in this court. United App. 447, 54 Am. St. Rep. 532, 40 N. E. States v. Tidball, 3 Ariz. 384, 29 Pac. 385; 646; Junction R. Co. v. Ruggles, 7 Ohio Putriam v. Putnam, 3 Ariz. 182, 24 Pac. St. 1; Remington v. Higgins, 54 Cal. 620; 320; and Charouleau v. Shields (Ariz.) 76 Randall v. White, 84 Ind. 509; Ames v. Pac. 821, are all from the Arizona supreme Richardson, 29 Minn. 330, 13 N. W. 137; court, and rest upon the peculiar statutes Mattes v. Frankel, 157 N. Y. 603, 68 Am. of that territory. An examination of these St. Rep. 804, 52 N. E. 585; Young v. Stamp. cases discloses the fact that there is a statfler, 27 Wash. 350, 67 Pac. 721; 1 Pom. ute in Arizona requiring the assignment of Eq. Jur. $ 365; Broom, Legal Maxims, 279. errors to be filed with the clerk of the trial

court prior to the printing of the transcript,. Ailshie, J., delivered the opinion of the and the supreme court has held that such court:

statute is mandatory. Haas Pueblo A motion was made in this case to strike County, 5 Colo. 125, holds that a failure to from the files the “supplemental brief of file any assignment of errors in the appelappellant,” upon the grounds that the same late court, either at the time of filing the was filed without permission of court hav- transcript or thereafter, is fatal, and that ing been obtained, and for the further rea

the appeal will be dismissed. There a court son that there is no authority in law, or

rule requires the appellant to assign errors any rule of this court, for the filing of a

at the time of filing the transcript of record, supplemental brief. It appears that with and provides that the appeal or writ of in the time prescribed by the rules of this error will be dismissed for failure to do so. court the appellant served his brief upon Rehberg v. Greiser, 24 Mont. 487, 62 Pac. the respondent, but the original brief filed 820, 63 Pac. 41, is from the supreme court by appellant contains no enumeration of of Montana, and is a case where the appeal

was dismissed for failure to set out any errors relied on for a reversal of the judgment. The original brief, however, discuss. specification of errors, and is founded on es errors complained of, and refers to the 6 of this court (22 Mont. xxx., 57 Pac. vi.) ;

1 rule very similar to paragraph 1 of rule page and folio of the transcript containing but the court there held that the filing of the same. Appellant made a motion for a new trial in the lower court, and his stote- dictional, and in the course of the opinion

such an enumeration of errors was not jurisment on motion for new trial contains referred to the fact that in other cases the specific assignments of error covering nine court had disallowed motions to dismiss pages of the transcript, and are directed at for such failure. It was held, however, both the insufficiency of the evidence to that the particular case then under con. justify the findings, decision, and judgment sideration did not present such facts as of the trial court, as well as errors of law would justify them in disallowing the mooccurring at the trial in the admission and tion. Brovelli v. Bianchi, 136 Cal. 612, 69 exclusion of evidence. After the service Pac. 416, simply holds that upon an appeal of the original brief, and prior to the calling from an order denying a motion for a new of the case for oral argument, appellant pre trial, where “the evidence is not pointed pared, served, and filed what he termed a out in the brief of appellant, and no sug. "supplemental brief of appellant,” in which gestion made as to the respects wherein the he specifically enumerates the errors relied evidence fails to support the findings,” the on for a reversal of the judgment; and I court “will not endeavor to discover the

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respects wherein the evidence is insufficient, , and setting up title in himself, in and to but will presume that it supports every an undivided one-half interest in the premmaterial finding of fact.” Schroeder v. ises described in the complaint. In order Schmidt, 74 Cal. 459, 16 Pac. 243, holds that to properly understand this case, it is necan “error (committed) in granting a non-essary to recite somewhat at length the hissuit

cannot be reviewed an tory of the dealings and transactions beappeal from an order refusing a new trial, tween the plaintiff, Whitney, Willard White unless it was excepted to on the trial, (defendant's grantor), and I. R. Beery (the and specified as error in the statement or grantor to both the plaintiff and White). bill of exceptions.” The numerous other the contract out of which all subsequent authorities cited by respondent on this point troubles seem to have grown was entered are practically to the same effect as those into on the 7th day of September, 1899, be. just reviewed. It does not appear from tween the plaintiff, Whitney, and Willard these authorities that the courts are in White, and is as follows: clined to refuse to examine a case on appeal where the errors have been assigned and "This agreement witnesseth: specified in the statement on motion for

Whereas, W. G. Whitney and Willard new trial and are contained in the tran- White having acquired a dam, log storage script on appeal, even though they are not and power site on the Payette river, at a specifically enumerated in the brief. In point called the Black Rock Canyon about this case, however, appellant has substan. 6 miles above the town of Emmett, in Can. tially complied with the rule in filing his yon county, Idaho, and, supplemental brief, enumerating the errors, Whereas, it is proposed to secure suffiprior to the case being called for argument cient funds with which to erect a dam at in this court.

said site, about 30 feet in height with a Respondent also contends that the appeal view to creating a large water power to be from the order denying the motion for a used in sawing lumber, elevating water new trial cannot be considered in this court, upon both sides of the Pavette river, for on the ground that it has not been urged the purpose of irrigation, and for generor assigned as error on appeal. Sec'ion ating electric power to be utilized for rail. 4427, Rev. Stat. 1897, allows an aggrieved way and such other purposes as may be party an exception as a matter of law to an found feasible. order denying his motion for a new trial; Now, therefore, in consideration of the and, since the appellant had assigned his premises, each of the parties liereto agrees errors in the statement and bill of excep. to give his best efforts to the iminediate tions used on the hearing of the motion, accomplishment of the above-mentioned and had pointed out the insufficiency of the project, and does agree that the parties evidence to support certain findings as well hereto are to own an equal interest in such as the errors of law committed at the trial. / undertaking, share and share alike. he is entitled now, upon his appeal from It is further agreed that, in the event the such order, to have those assignments of said White shall fail to raise su'licient funds error examined and considered in this court. to construct said dam, or fails to make such It is true that some of the courts, to whos" progress as shall be satisfactory 10 said decisions counsel have culled our attention, Whitney within one yeir from the date have established a contrary rule; but our hereof, the said White agrees to assign all appellate practice is cumbersome enough at his right. title, and interest in the same best, and we are not inclined to place s'?ch to said Whitney. a construction on the statute and l'old tri Witness our hands and seals this 7th day such a technical observance of the rules of of September, 1899. this court as will make appeals any more Witnessed by: W. Garret Whitney. difficult of prosecution than they are at

Ben I. Bloch. Willard White. present. For the foregoing reasons, resnon. dent's motion will be denied, and the case

According to the testimony, White, in will be examined on its merits. This action was commenced by plaintifr. pursuance of the terms of the contract of

September 7th, went east for the purpose of W. G. Whitney, praying for a decree of the rising money and procuring a contract for court quieting his title in and to lots 1, 2, the proposed dam site, and on the 20th 3, 5, and 6, in section 22, township ? N., R. day of December of the same yeir entered 1 west, Boise meridian, and situate in Boise into a contract with J. R. Beery, of Minand Canyon counties, and for a perpetual in

neapolis, Minn., as follows: junction against the defendant thereafter asserting any claim whatever in or to the premises described. The defendant

This agreement made and entered into swered, denying plaintiff's right and title, this 26th day of December, in the year pr

an

our Lord one thousand eight hundred and hereunto set their hands and seals the day ninety-nine.

and year first above written. Between I. R. Beery, of Minneapolis,

I. R. Beery, Minnesota, the party of the first part, and

Willard White. Willard White of Boisé, Idaho, party of the second part,

Thereafter, and on the 25th day of JanuWitnesseth, that the said party of the ary, 1900, I. R. Beery and wife made and first part for and in consideration of the executed their warranty deed to the entire covenants and agreements on the part of tract of land and premises descrilied in the the said party of the second part liereinafter complaint in this action, and in such deed contained, agrees to sell and convey unto named Willard White as the grintee, and the said party of the second part, and the on the date of its execution the deed was said second party agrees to buy, all those placed in the hands of the grantee, White, certain lots, pieces, and parcels of land, at the city of Minneapolis, and was theresituate in the counties of Canyon and Boisé, efter by White brought back to the state in the state of Idalio, and more particularly of Idaho, and has ever since been in White's described as follows, to wit: Lots one (1), possession and control. As to whether or two (2), three (3), five (5), and six (6) of not the deed of January 25th was ever acSection twenty-two (22), Township seven tually delivered within the contemplation (7) North, Range one (1) West, B. M., for of law is a vital question in this case. the sum of $6,000.

The next important step in the course of And the said party of the second part in these transactions occurred on April 25, consideration of the premises agrees to pay 1900, when Beery and White entered into a to the said party of the first part the sum new agreement, which by its terms provided of $6,000, to wit:

that it should take the place of the forOne thousand dollars in cash on or be mer agreement, of date December 26th. fore February 1st, 1900, and $5,000 in first. The important part of the agreement of mortgage 'bonds in a corporation to be April 25th, and that which has any spe. formed for the purpose of developing a pow- cial bearing upon the matters in controversy er plant at a point upon the above-described in this action, is as follows: property known as the Black Rock Canyon. said bonds to be issued upon said property

Witnesseth, that whereas, I. R. Beery, and upon such iniprovements as shall be party of the first part, is the equitable ownplaced thereon.

er of the real property hereinafter described, And the said party of the second part while Willard White, party of the second agrees to pay all state and county taxes nart, holds the legal title thereto by virtue or assessments of whatsoever nature which of a deed heretofore executed by the said are now or may become due on tlie premises I. R. Beery, and wife, under an agreement above described.

heretofore entered into by and between said In the event of failure to comply with Beery and said White, and the terms hereof by the said party of

Whereis, it is desired by the parties to the second part, the said party of the enter into a new and different agreement at first part sliall be relieved from all obli. this time in relation thereto, gations in law or equity to convey said prop

Now, therefore, for and in consideration erty, and the said party of tlie second part of the mutual covenants hereinafter conshall forfeit all right thereto at the option tained, and to be by said parties paid, kept, of the party of the first part. And the said and performed, it is agreed: That said Wil. party of the first part, on receiving such lard White has this day become the owner, payment at the time and in the manner bsolute, of the equitable as well as the legal above mentioned, agrees to execute and de: title to a one-half interest, undivided, in liver to the said party of the second part or the property hereinafter described, for the to his assigns a good and sufficient dred consideration of seven hundred and fifty for the conveying and assuring to the said dollars ($750.00), $150 of which said gross party of the second part the title to tlie sum has this day been paid, the receipt above-llescribed premises free and clear of whereof by said Beery is hereby acknowl. encumbrances other than the taxes herein. edged; $100 is to be paid on or before May before mentioned. And it is understood 15th, 1900, and the remainder of said sum that the aforesaid stipulations are to apply of $750, to wit, $500, is to be paid on or beto and bind the heirs, executors, administra- fore January 1st, 1901. tors, and assigns of the respective parties, and that the said party of the second pirt

Thereafter, and on the 13th day of May, is to have immediate possession of said 1901, the plaintiff, Whitney, secuired from premises.

Beery a quitclaim deed to the lands and In witness whereof, the said parties have premises in controversy, the title to which

he seeks to quiet by this action, and which matter of trust with me.” Other witnesses title is derived from Beery through the me- testified to subsequent statements made by dium of this deed alone. On the 7th day of White to the same effect. August, 1901, White executed and delivered The deed of January 25th from Beery to a quitclaim deed of an undivided one-half White was without any condition or reservainterest in and to the property described, to tion whatever expressed on the face of the R. M. Cobban and George H. Casey, and on instrument, and, so far as can be gathered September 27, 1902, Cobban and Casey by a from the indenture itself, it is absolute. It quitclaim deed conveyed their undivided is admitted that this deed was delivered by one-half interest to the defendant, Dewey. the grantor into the personal and manual Dewey traces liis title through a chain of possession and control of the grantee, and quitclaim deeds back to the warranty deed passed completely from the control and diexecuted by Beery and wife on January 25, recticn of the grantor. The contantion made 1900.

by plaintiff on this point is about as follows: At the trial the court permitted the plain. That, under the agreement of December tiff to introduce the testimony of I. R. Beery 26th, White was expected to form a corporaand other witnesses, showing a parol agree. tion for the construction of a big dam on the ment and understanding had between White Payette river, with its site upon the lands and Beery at the time of the execution of in controversy, for the purposes of power the deed of January 25th, and by the terms and irrigation, and that, as soon as the corof which agreement it is contended that the poration should be organized, the title to deed of January 25th was delivered upon this property should be conveyed to such conditions thereafter to be performed and corporation, and thereupon Beery should be complied with by the grantee, White, and on paid the sum of $1,000, and delivered $5,000 the failure to perform which no title should worth of first-mortgage bonds to be issued pass under the deed. The defendant object by such corporation in full payment for the ed to the introduction of this class of testi- property. And the plaintiff contends that mony, upon the grounds that the complaint the deed of January 25th was executed and alleges that the deed was placed in the hands delivered under the terms and conditions. of White with the understanding that the of the agreement of December 26th, and that, same should take effect and pass title froin it was mutually understood and agreed beBeery to White only upon a compliance by tween the grantor and grantee at the time White with the terms and conditions of the that the corporation should be formed, and contract of December 26th, and that to per- that accordingly this deed was delivered to mit parol testimony would be to contradict White in order to facilitate the transaction, a written contract, and for the further rea- and enable White to immediately convey the son that parol evidence is not admissible for property to the corporation and perfect the the purpose of showing the terms and con- title, and qualify the corporation to issue ditions under which a deed, absolute on its the bonds in payment of the balance of the fare, was delivered into the possession of purchase price. As above observed, this White. The substance of the evidence given deed was delivered to the grantee, and conon this point is fairly stated by the grantor. tained upon its face no conditions whatever Beery, in his testimony, as follows: "Mr. precedent to the vesting of title. AppelWhite first visited me about the 26th of lant insists that the facts disclosed in this December, 1899, when this contract was exe. case show an absolute delivery of the deed, cuted. Then he returned on the 25th of and that parol evidence was inadmissible January, at the time we made the deed. to attach any condition to the vesting of At this time I executed and delivered to title under such a deed. him this deed, placed it in his possession It is a well-settled principle of law that a personally at the time he was in Minneapo- deed cannot be delivered by the grantor to lis, and he carried it back to Idaho. I placed the grantee therein named to be held by the it in his hands so that the matter could be grantee in escrow. If such thing be done, closed up promptly in connection with the the result is that title vests at once in the transferring of the property to the corpora- grantee. The holder of an escrow must be tion that was contemplated; these bonds were a third party, who for such purpose becomes to be paid, and an issue of bonds on this the agent of both the grantor and grantee. property and power plant and ditches, etc., In 13 Cyc. Law & Proc. p. 564, the writer contemplated. I was to be paid when the of the text says: A deed cannot be de. matter was consummated and the bonds livered as an escrow to the grantee, and a ready to be issued. The deed was placed in delivery which purports to be such will his hands to facilitate the matter, and so operate as an absolute one. This rule, that we all coula save time. He could pay however, applies only to those deeds which me when he used the deed, just as though are upon their face complete contracts re, I sent the deed to him to hold. It was a l quiring nothing but delivery to make them

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