ANTONIO SETTEMBRE v. CHARLES D. PUTNAM, and GEORGE D. MINCHELL, 30 Cal. 490

By the Court, Sawyer, J.: We think, upon the facts found, that there existed between the plaintiff and defendants one of those associations, so common in this State, formed for the purpose of carrying on mining operations, and combining some of the incidents of ordinary trading partnerships, and some of the incidents of tenancies in common—a species of qualified partnerships, often called mining partnerships.

The two defendants, together with one Brodie, were in possession of a portion of the “ Rancho Yerba Buena y Socayre,” in the County of Santa Clara, upon which they supposed they had discovered a quicksilver mine, which mine they claimed in equal shares. They had also agreed between themselves to explore and develop it. The title to the land upon which the mine was supposed to exist, was in Thomas H. and Oliver, W. Farnsworth.

The Court found that both the plaintiff and defendants were without means; “ but the plaintiff was a miner of some skill and experience, and the defendants, anxious to secure his services in prospecting the mine, verbally proposed to him, that, if he would accompany them and devote his time, labor and skill in exploring and developing the mine, they would supply the necessary mining tools and provisions, and give him an equal share of their interest in the mine (their interest being two thirds, and Brodie’s one third) if it should prove valuable." “ The plaintiff accepted this proposition, and at the same time gave to them twenty dollars with which to pay certain expenses incurred by the defendants in starting their enterprise.” “ Under this verbal contract the defendants furnished the tools and provisions.

Brodie was no party to the contract between the plaintiff and the defendants, but he furnished the defendants with two laborers. And the plaintiff, with the men furnished by Brodie, went to work and opened a tunnel, in which they worked for twenty-five or twenty-six days, and at the end of that time struck a ledge of quicksilver ore. The ledge promising to be valuable, the defendants and the plaintiff, upon a consultation together, concluded it best to buy from the said Farnsworths the title to the land on which the mine was located.

And for that purpose they authorized one of their number, to wit, the defendant Putnam, to try and procure the land for them (the said plaintiff and defendants.) The defendant Putnam accordingly arranged with the said Farnsworths to lease one hundred acres of the land as described on page six of the plaintiff’s complaint, with the privilege of buying it within six months thereafter; and on the 6th day of June, 1865, the said defendants, in their own names, and the said Farnsworths, made and executed and delivered the written lease and contract of sale of said tract of land. * * * * Thereafter the said defendants claimed to'be the absolute owners of the mine and of the land in which it is located, and refused to recognize the plaintiff or Brodie as having any share with them in the mine, or any'right, title or interest in the land in which the mine is, but (without informing the plain- • tiff of the fact) considered him (the said plaintiff) there as a laborer only.

And on the 13th of June, 1865, they, the said defendants, transferred to one O. L. Crandall an undivided one third of the lease and contract of sale mentioned and described in the sixth finding of fact.” Crandall, at the time he purchased in, had no knowledge of the interest of plaintiff. On the 17th of June, four days after Crandall purchased, he and the defendants entered into a further contract of a similar character with the last, embracing a larger tract, of eleven hundred acres.

The said Crandall and the defendants then borrowed three thousand dollars from one John Parrott, with which they commenced working said mine, and took out ore and had it reduced at the Guadalupe Mine; and they realized from it forty flasks of quicksilver; and during all this time the plaintiff continued to work in the mine. “ The plaintiff worked at the mine from about the first of April, 1865, the time when he entered into the verbal contract with the defendants, until the 21st of July, 1865, not as a hired laborer, but under said verbal contract with said defendants ; and during that time he received from said defendants sixty dollars, fifty of which were given to him when they and the said Crandall had borrowed three thousand dollars as already stated; and the other ten dollars were handed to him on the 3d of July, 1865, to enable him to enjoy the ‘ Fourth of July.’ The plaintiff, when he received this money, took it, stating to the defendants that he did so on account of the share he had with them in the mine, and not in payment for his work.” “At the time of the commencement of this suit the defendants had no property except their interest in the mine and lands in controversy.” “ The ores taken from the mine were sent to the Guadalupe Mine to be reduced, as stated in the within finding of fact, as security for the payment of the money advanced by Parrott to Crandall and the defendants.” Implied trust in purchase of mining ground by a partner.

Upon this state of facts, the plaintiff fully performed his part of the agreement, and became entitled to one third of the interest claimed by defendants, that is to say, one third of two thirds of the whole interest in.the mining claim—Brodie having at the beginning one third, and the defendants two thirds.

After developing the mine and proving its value, the plaintiff and defendants, for the greater security and the enhancement of the value of their enterprise, agreed, if possible, to lease or purchase from the owners the land upon which the mine was situate, and one of them was authorized to make the lease or purchase from the Farnsworths, for the benefit of plaintiff as well as defendants. But the lease and purchase were, in bad faith, made in the name of the defendants alone.

There can . be no doubt that the interest thus acquired in the name of defendants, to the extent of one third of the whole interest to which they were entitled, was held by them in trust for the plaintiff. Nor does it make any difference that defendant sold an interest to Crandall without notice of plaintiff’s rights, and that they increased the value of the purchase by a further ' contract with the Farnsworths.

The defendants could dispose of their own interest, but they were not authorized to sell that of plaintiff, and after the sale to Crandall there was still sufficient left in the names of the defendants to satisfy the claim of plaintiff, and as these contracts of lease and purchase were made in the names of defendants, in-bad faith, the law impresses upon them a trust in favor of plaintiff to the extent of his interest under the agreement.

The plaintiff continued to work on under and in pursuance of his agreement till July 21st, 1865, long after the date of the last purchase, and after said purchases said defendants paid over to said plaintiff the sum of sixty dollars, defendants knowing that plaintiff received it at the time as a part of his share of the profits, and not as a payment for his labor. The plaintiff by reason of his interest acquired under the- agreement with defendants, as between him and them, is entitled to a corresponding share of the profits of the mine. And this necessarily entitles him to an account.

He is also entitled to a conveyance of one third' of the interest in the mine originally held by the two defendants, and one third of two thirds of the interest acquired by the two contracts entered into between the defendants and the Farnsworths, and the defendants and Crandall and the Farnsworths'.

The facts showing the plaintiff’s rights are all set out in the complaint, and the prayer of the complaint is broad enough to cover all the relief to which the plaintiff is entitled, and, whether the arrangement is called a partnership or not, we see no reason why the relief might not be granted in this suit, if all the parties interested had been .before the Court. Parties in action to dissolve mining partnership. The contest as to the right of the plaintiff to the interest claimed, and his share of the profits, seems to be between the plaintiff and defendants alone. Plaintiff has no agreement with Brodie.

Defendants and Brodie had a claim to the mine and the possession of the land, each holding an equal share, also some sort of an agreement to explore and develop it. A sub-contract was then entered into between defendants and plaintiff, by which plaintiff was to devote his skill, time and labor to the enterprise, and in consideration thereof, they were to furnish provisions and tools, and share their interests equally with him. Brodie had nothing to do with this subcontract.

It concerned plaintiff and defendants alone, consequently Brodie had no interest in the litigation, so far as the establishment of plaintiff’s right is concerned. What became of Brodie’s interest after the development of the mine does not appear, yet he does not seem to have figured in the matters relating to the leases and conditional purchases from the Farnsworths, or in anything subsequent to striking the ledge.

If Brodie still has an interest, and an account is to be taken, the association dissolved and the interests severed, as prayed for, Brodie and Crandall are necessary parties, for this branch of the relief sought could not be granted without affecting their interest. They are necessary parties in taking an account. It would be impossible to ascertain what share of profits would fall to the two thirds interest originally held by the defendants without taking an account as to the whole.

It is true that no objection was taken in the Court below, on the ground of defect of parties, and the suit need not therefore necessarily be defeated; but it is one of those cases provided for in

section seventeen of the Practice Act, where it turns out upon the trial that a complete determination of the controversy cannot be had without the presence of other parties, and the Court is authorized, of its own motion, to order them to be brought in before a final disposition of the case.

If the plaintiff insists upon an account and final settlement of the affairs of the concern when the case goes back, it appears to us, from the record as presented here, that it will be necessary for the Court below to order the other parties to be brought in, in order'that they may have a hearing, so far as their interests are concerned.

If, however, the plaintiff is content with a judgment establishing his right and fór a conveyance of the interest to which he is entitled, we see no reason why he may not waive any relief which requires the presence of other parties, and have the relief indicated awarded on the record as it now stands. Perhaps a separation of the interests of the plaintiff from that of defendants wóuld afford sufficient protection to the plaintiff without in any other respect interfering with the association. Judgment reversed and cause remanded for further proceedings in the Court below.