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and William Fletcher shall pay or cause to be paid to the said
John Nash and John Nisbet, jointly and equally (over and
above the one half of such net profits to which the said John
Nash and John Nisbet are entitled in their own right), one
half of the said net profits, to the extent of five thousand
dollars, United States gold coin, without interest, then these
presents shall be void; otherwise in full force and effect.
"MARYSVILLE, California, 13th September, 1865.

"CHARLES E. SEXEY. [SEAL.]
"WILLIAM FLETCHER. [SEAL.]"

Their demurrer to the complaint having been overruled, defendants answered, admitting that John Nisbet and John Nash did convey to defendants Sexey and Fletcher the undivided one half of all the premises and property in said Exhibit "A" described, the same including the premises and property in the complaint described, and other property, and that the sum of five thousand dollars, named in said Exhibit "A," and to be paid as therein stipulated and agreed, was the consideration for all the premises and property in exhibit, and not for the premises in the complaint described alone.

And further answering, defendants aver that the premises and property other than the premises and property in the complaint described, for the conveyance of which the said sum of five thousand dollars was to be and was the consideration, were at the time of such conveyance worth fully as much as the premises and property in said complaint described, and constituted fully one half of all the property so conveyed in value.

Further answering by Sexey and Fletcher, they deny that plaintiff ever was or is, as grantee of John Nisbet, or otherwise, an owner or tenant in common with them in said mining property. They deny that John Nisbet and John Nash, or either of them, conveyed an undivided half or other interest in said mining claim to said defendants, or either of them, for the sum alleged, and aver that said sum was the consideration also for other property, worth as much as the interest conveyed in said mining claim. They deny that said defendants Sexey and Fletcher have failed or refused to comply with any of the conditions of said bond, or to work, or con

tribute by means or labor, to the development of said mining claim, but aver that they have contributed largely thereto, and have complied with all the conditions of said bond. They deny the alleged indorsement or transfer of said bond to plaintiff, or that thereby or otherwise he ever was or is a partner of said defendants, but they admit that they and John Nisbet have done a large amount of work, and have expended over three thousand dollars on said mining claims. They deny that any part of said sum ever was or is due to said plaintiff, but aver that all expenses and indebtedness incurred or authorized on partnership account have been fully paid and discharged. They deny that John Nisbet and plaintiff, or either of them, ever assumed or paid any part of said expenses or indebtedness, or any sum whatever, for any work or expenses incurred or authorized in the development of said mining claims by John Nisbet and defendants, or any of them. They deny that any sum or balance of any indebtedness on any account, by assignment from John Nisbet, or otherwise, ever was or is due or owing from defendants to plaintiff.

Wherefore, the premises considered, defendants pray judgment that plaintiff take nothing by his action and for their

costs.

The cause was tried without a jury, and among other facts the court found: That the plaintiff, John Nisbet, Charles E. Sexey, William Fletcher, and John Nash are joint owners and tenants in cominon, each of an undivided one fourth interest in and to the premises and mining property described in the plaintiff's complaint; that all the allegations of plaintiff's complaint, down to the allegations of a mining partnership, are true.

The court further found that the parties to the action are not mining partners.

For further facts reference is made to the following extracts from briefs of counsel:

BELCHER & BELCHER, for defendants and appellants.

1. One of several parties engaged in a mining venture may, at his pleasure, sell his interest in the property acquired; but he can not, except under special circumstances of wrong

or oppression, maintain an action for partition. Our statute fixes the relations, duties and liabilities of parties engaged in mining ventures toward one another; and it was the intention of the legislature, in giving to a party thus engaged with others the right to put another in his place without interrupting the business, to take away the common law right of requiring a dissolution of the copartnership, and as well the right of a co-tenant to demand partition of the common property. As a rule it would be ruinous to mining enterprises if the owner of a small interest in the mine could demand as matter of right partition or sale of the mining property.

2. The majority in interest of a mining partnership have the right to control the working of the mine and the affairs of the company: Dougherty v. Creary, 30 Cal. 300.

In this case, Nash, Fletcher, and Sexey owned three fourths of the mine, and John Nisbet the other fourth. Together they had prosecuted work for more than three years for opening and developing the mines, and had expended more than three thousand dollars on the work. The contractors, of whom the plaintiff was one, abandoned their contracts, and the company, or at least three of the four members of it, determined that it was for the best interest of the company to suspend work for the time and to wait until a supply of water could be obtained at reasonable rates. They did not abandon the mine nor the purpose to work it, but only suspended work for the time. This the majority in interest had the right to do: Civil Code, Sec. 2520.

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That section declares that "the decision of th members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business."

3. Under the contract between Sexey and Fletcher of the one part, and Nash and Nisbet of the other, the plaintiff was not entitled to demand or claim any portion of the five thousand dollars purchase money from Sexey and Fletcher until it should be made out of their share of the net profits arising from the use of the property conveyed.

P. O. HUNDLEY, for appellant, plaintiff.

1. That when Fletcher and Sexey purchased an undivided half of the mining claim from Nisbet and Nash, and actually

engaged in the working of the claim, expending the sum of three thousand dollars and over, they became mining partners: Civil Code, Sec. 2511; Taylor v. Castle, 42 Cal. 370.

The facts of the case clearly show that they were mining partners; they purchased the property for the purpose of working it as a mine.

They actually engaged in the working of the mining prop erty as they had agreed to do. It was continued from 1865 to 1869.

They expended over three thousand dollars in that time in the working and development of the mining premises.

2. The partnership having been formed and commenced its existence, it continued until dissolved in some mode known to the law.

The evidence in this case nowhere discloses the fact of the dissolution of the partnership thus formed, nor was it in fact ever dissolved.

3. That the sale made by John Nisbet to William Nisbet of his interest in the mining property, and the assignment of the amount due to him from the partnership, did not dissolve the partnership: One of the partners in a mining partnership may convey his interest in the mine and business without dissolving the partnership. Civil Code, Sec. 2516; Duryea v. Burt, 28 Cal. 569; Taylor v. Castle, 42 Cal. 370.

4. The court having decided that appellant was entitled to partition of the property, he had also, under the allegations of the complaint, a right to an accounting of the partnership transactions, provided the evidence in the case disclosed the fact that there was a partnership existing between the owners. This, we think, the evidence clearly established.

By the Court.

The court erred in finding that plaintiff and defendants were not mining partners. They were.

The court should have found whether or not the partnership had been dissolved.

If on a re-trial the district court shall find that the partnership has been dissolved, the decree must be for an accounting. If the court shall find that it has not been dissolved, it will become its duty to determine whether or not plaintiff is enti

tled to a decree of dissolution; and if it shall find that plaintiff is entitled to such decree, the decree should also provide for an accounting.

It is not necessary, at this time, to determine whether John Nisbet is a necessary party to this action, or to proceedings for an accounting.

Judgment and orders denying new trial reversed, and cause remanded for a new trial-each party to pay one half the costs of these appeals.

'KAHN V. THE CENTRAL SMELTING COMPANY.

(102 United States, 641. Supreme Court, 1880.)

Findings before judgment. Where, under the practice established in Utah, issues are tried by the court, its findings of fact should be announced and filed before the entry of the judgment.

Unauthorized entry of new finding. After such entry an additional finding, made at the request of either party without notice to the other, forms no part of the record.

Conveyance by partner. A member of "a mining partnership" may, without dissolving it, convey his interest in the mine and business. Insufficient finding as to partnership. In a suit to compel an account for the proceeds of a mining claim, a finding by the court that there was no such co-tenancy between the parties in the mine in controversy as to entitle the plaintiff to an accounting, is a mere legal inference, and not a sufficient finding of fact upon which to base a decree. Delectus personæ. A different rule from that which governs the relations of members of a trading partnership to each other is recognized as applicable to the relations to each other of members of a mining association.

Appeal from the Supreme Court of the Territory of Utah.

The facts are stated in the opinion of the court.

JOHN R. MCBRIDE and GEORGE H. WILLIAMS, for the appel lant.

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