Mr. Justice Scholfield
delivered the opinion of the Court:
There can be no question but that all prior and contemporaneous agreements between Bragg and Smith, as to the terms of their agreement of dissolution of their real estate copartnership, are merged in their written agreement. That agreement bears date on the first day of May, A. D. 1869, and, after reciting the formation of the copartnership between them, their agreement to dissolve the same, the property acquired and by whom title is held, etc., proceeds in the following words:
“Now, these presents witnesseth that the said James Smith, in consideration of the premises, and of the sum of one dollar to him in hand paid by the said Frederick A. Bragg, the receipt of which is hereby acknowledged, does hereby sell, transfer, assign and make over unto the said Frederick A. Bragg, and to his assigns, all his, said Smith’s, right, title interest and claim in and to the lease of the said room and basement aforesaid, and in and to the chairs, desks, iron safe,' and all other furniture and fixtures used in said office or appertaining thereto, to have and to hold the same unto the said Frederick A. Bragg and his assigns.
“ And for and in consideration of the premises, and of the sum of one dollar, in hand paid by the said James Smith, the receipt of which is hereby acknowledged, the said Frederick A. Bragg does hereby sell, assign, transfer and make over unto the said James Smith, all his (said Bragg’s) right, title, claim, interest and demand, in and to all of the outstanding claims and demands of every sort, commissions, real and personal estate and property, mining lands or interests, notes, bonds or obligations, contracts or property, or claims of any and every description whatsoever, held or owned, or claimed by or due or owing to said firm of F. A. Bragg & Co., saving and excepting the three several parcels of real estate and leases of said office, and the furniture and fixtures of the same, hereinbefore particularly described, and the interest in the said Minerva and Minna lodes, hereinbefore particularly described, and in reference to the said hereinbefore described three parcels of real estate, and the said interest in the said Minerva and Minna lodes.
“ It is hereby mutually agreed and understood as follows, to-wit :
“ 1st. That upon the said James Smith being fully reim- 1 bursed for all moneys expended by him, or which he may hereafter expend in the payment of the purchase money of, or other outlays in connection with, or on account of the said three several parcels of real estate hereinbefore described, situate in Cook county aforesaid, and the said undivided 600 feet of mining lands situate in Salt Lake county aforesaid, (including the necessary proportion of expenses for developing and working said mining lands,) with interest upon all sums advanced or expended by the said James Smith as aforesaid, at the rate of ten per cent per annum, that said Frederick A. Bragg shall be entitled to one-third of the net profits arising from the sale or other disposition of said three parcels of real estate situated in Cook county aforesaid, and to one-third of the net profits arising from the sale or working of the said mining lands situated in Salt Lake county aforesaid. * * *
“ 6th. That in the expenditure of money for the development and operations of the mines hereinbefore described, the said Frederick A. Bragg shall be only liable for such pro rata proportion of such expenses as his (said Bragg’s) undivided one-third interest in said six hundred feet shall bear to the amount expended by other owners for the same purpose, and the said Bragg reserves the right to terminate his liability at any time for further expenses connected with said mines, by giving written notice to the said James Smith.”
"Very clearly Bragg has no claim to a partnership in Smith’s interest in the “ Emma ” mine by virtue of anything to be found here. Here is an express surrender, by Bragg to Smith, of all his interest in mining lands or interests then owned by them, except as to the “Minna and Minerva” lodes; and there is no covenant or agreement giving Bragg an interest in such property to be acquired by Smith in the future. Smith’s obligations to Bragg, in regard to mining property, as defined by this instrument, are limited to the “ Minna and Minerva” lodes.
But Bragg, by his amendment to his bill, made on the hearing, alleges that subsequent to the making of the contract of dissolution, and about the 15th of May, 1869, he and Smith and Jones, Steele and Sheriffs, held a meeting at which it was agreed that all mining property acquired by Smith, while acting in Utah, should be for the benefit of said parties; that the parties should each advance the necessary funds for that purpose, but that Smith was to advance Bragg’s proportion, and that pursuant to that agreement Smith Avent to Utah in the month of May, 1869; that in January, 1870, Smith returned to Chicago, (having wasted and squandered the money previously furnished him,) for more money and to consult Avith his copartners; that in April, 1870, he was again sent to Utah by his copartners and supplied with funds by advances made in equal proportions by the copartners; and that, upon reaching Utah, in April, 1870, Smith purchased of Robert Bruce Chisholm and Woodman, a certain interest in the “ Emma” mine for $200, which sum he paid out of the money advanced by his copartners, etc.
It is necessary to see AAdiether this allegation is sustained by the evidence. Before referring to the evidence bearing upon the question, hoAvever, it is proper that we should determine the competency of certain evidence heard upon the trial of the cause in the Superior Court, to which objection was made by the counsel representing the executors and William B. Smith.
The defendants, Steele and Jones, Avere each examined as witnesses, and permitted to testify to facts occurring before the death of James Smith, and to declarations and admissions made by him.
The case claimed by Bragg is, these defendants were copartners with himself, Smith and Sheriffs; and the prayer of the bill is that upon a final accounting the trustees may be decreed to transfer, deliver and pay over to Bragg, and the other members of the copartnership, the respective interests that may be decreed to belong to each,—so that a decree in favor of the complainant would also be a decree in favor of Steele and Jones.
Under the old chancery practice, it is true, a complainant might obtain an order, as of course, to examine a defendant, and a defendant a co-defendant, as a witness, upon an affidavit that he was a material witness and was not interested on the side of the applicant, in the matter to which it was proposed to examine him. 1 Greenleaf’s Evidence, § 361. If interested, however, on the side of the applicant, in the matter to which it was proposed to examine him, his evidence could not be admitted. Dyer v. Martin, 4 Scam. 147.
Our statute permitting parties and persons interested to testify in their own behalf makes the exception that “no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, * * * when any adverse party sues or defends as * * * the executor, administrator, heir, legatee or devisee of any deceased person or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party suing or defending.” * * *
Since the adverse parties were to defend as trustees for a legatee, and as legatee, and the co-defendants are, in reality, called to testify in their own behalf, as well as in behalf of the complainant, there can be no pretence for admitting their evidence under that statute, and it should not have been admitted or considered. Brown v. Hurd, 41 Ill. 121; Alexander v. Crosthwaite, 44 id. 359.
Recurring, then, to the other evidence, Sheriffs, in his answer, in response to this allegation in the bill, denies it in toto. There is no evidence sufficient to overcome this answer. The evidence relied upon by Bragg to support his bill in this respect is that of Fitch, Alex. McDonald, Daniel Boone, James Chisholm, Joseph F. Hatch, Philip Wadsworth, Eugene Stickney, Samuel Pease, William Loomis and Henry Fuller. Let the evidence of these witnesses be examined separately, and it will be seen that it falls far short of sustaining this allegation.
Thomas Fitch testified that a letter was written by Smith to Bragg, relating to the purchase of an interest in a mine which he supposed to be the Emma, on account of the co-partnership. All that he says on that subject is this: “Remember one letter particularly, because we relied on it to establish our case. The purport was a brief description of a mine, answering description of the Emma. Smith stated that he had an opportunity to purchase an interest in that mine for a small sum; that bethought it would pay better than their previous investment; that he was going to look at it, and if pleased, would purchase it.”
He further says: “The mine described and the locality named tallied with the Emma, and the date answered to the date of the conveyance to Smith of his interest in the Emma.”
It will be noted that this is all rather the conclusion oi impression made on the mind of the witness than a statement of facts. The letter, if produced, might have created quite a different impression. He does not pretend to give the words of the letter, and he speaks only after the lapse of seven or eight years, during which he seems to have traveled, for some time, in Europe—and once or more times changed his place of business—without giving any very conclusive reason for an accurate recollection of the contents of the letter. That he is mistaken in some respects is clear beyond dispute. He says he delivered to his professional partner, at the same time with this letter, original written articles of copartnership between the parties—that" is, as Ave understand him, betAveen Smith, Bragg, Steele, Jones and Sheriffs. But it is, on all hands, conceded there never was any written agreement whatever between these parties. He delivered what never existed.
Again, he says the date of the letter answered to the date. of the conveyance to Smith of his interest in the “ Emma.” But no interest in the Emma was ever conveyed to Smith. He was one of the original locators, and this admits of no controversy.
The fact is, in 1869 Smith acquired an interest in what was called the “Illinois Tunnel,” where he spent some time in working, and this was within six hundred feet of the Emma mine; and, from all the circumstances, it is much more probable that it was this to which'he alluded than to the “Emma” mine.
Apart from these objections to the evidence, however, it will be observed it is totally insufficient to prove a definite copartnership between Bragg, Smith, Steele, Jones and Sheriffs, formed after the first of May, 1869. He is not made to say in this letter who are his partners, for whom he intends purchasing, nor what the interest either is to have. While it might, in a general way, prove that others than himself were interested, it does not necessarily show that Bragg was one of those others. Alex. McDonald, Bragg’s counsel claim, says that Smith spoke in 1869 or 1870 of being interested with Steele, Jones, Sheriffs and Bragg in the “Emma” mine.
The whole of his evidence on this subject, as shown by question and answer, is as follows :
“ Q. 8. State if you had a conversation with James Smith as to his business, and as to his partners, or partnership business with Bragg, Sheriffs, Steele and Jones in the years 1869 and 1870?” (Objected to by defendant’s counsel as being incompetent and leading.)
“A. Well, ij we had uny conversation, it was nothing more than that he told me they were interested in mining business in the Emma mine at Salt Lake. That is all, and he was very anxious I should sell out and join in there. I didn’t know what interest they had in the Emma mine, only that they were all interested. They seemed to be his backers.” Did they have any such conversation? The witness does not state. They could not have had such a conversation in 1869, because the proof is clear beyond dispute no interest was acquired by Smith in the Emma mine, at that time.
There is nothing definite or tangible in this. How would it be possible to disprove it? All that is spoken of with certainty is that Smith was anxious that the witness should sell out and join in there,—whatever that may have been,—and Bragg, Steele, Jones and Sheriffs seemed to be Smith’s backers. He knows of no contract between the parties, and speaks of no admission defining their several interests.
The evidence of Daniel Boone, relied upon by Bragg’s counsel, is that he heard Smith say: “Well, Bragg’s interest and mine are mutual.”
The date of this conversation is fixed by Boone thus: “ I have taken pains to refresh myself as to the date of the loan. The papers were made out on the 27th of April, 1869. This conversation with Bragg was probably had a week or ten days prior to that.”
So, it was prior to the dissolution of the real estate copartnership between Smith and Bragg, and, by no possibility, could prove or disprove an agreement made subsequently to that time. At that time doubtless their interests were mutual.
B. B. Chisholm testifies that in 1869 or 1870 Smith admitted that he and Bragg were equal partners in all mining property he and Smith might acquire in Utah. He fixes this as being while they were in the real estate business, and before Smith went to Utah. It must, therefore, have been before their dissolution, and hence, like the evidence of Boone, it can neither prove nor disprove what subsequently transpired.
Joseph F. Hatch’s evidence is, that Smith did not deny the partnership when called upon for a settlement. His full statement, so far as here relevant, is this:
“ Smith was sick; saw him once. Asked him if he wanted to make some arrangement to settle without a suit. He told me to see Marshall and Carter, and I went to see them. Smith did not deny the partnership to me. All I knew of the matter was what I learned after Wadsworth wrote me. Smith, when I saw- him, said he had an understanding or agreement with these parties about going out there. He claimed they were interested with him in some mines, but he should fight it as to the Emma mine. Believe he told me the five were interested in the other mines, and the Tunnel—himself, Jones, Steele, Sheriffs and Bragg.”
Again, he says: “Don’t know that he told me he had partners, but got the impression.” And again: “ I did not have much conversation with Smith at that time,—he was sick. I spoke to him about these gentlemen furnishing him money.. He admitted that, but that was about all he said, and for me to go and see Marshall and Carter, his attorneys.”
It is not pretended this latter conversation could have had any reference to Bragg, for he does not claim to have ever furnished any money. So far as the previous admissions of Smith are concerned, which could have reference to Bragg, they are entirely consistent with the articles of dissolution, and do not, therefore, tend to prove a subsequent agreement. Under those articles, Bragg was interested with Smith in some mines, in Utah—the “Minna and Minerva.” But Smith then, as after, denied that anybody else was interested with him in the “ Emma.”
Philip Wadsworth says that Smith, in Bragg’s office,' said, “These boys furnished me the money.” But it is not claimed “these boys” included Bragg. He admits that he did not furnish money.
Eugene Stickney, Biagg’s counsel say, testifies that Smith went to Utah for the partnership, of which Bragg was the business man, bought a share in the Emma mine, in 1869, and in the transaction used the plural “we” and “us.”
Stickney’s evidence is that he was present at a conversation between Woodman and Smith in June or July, 1869, Avhen a proposition was made, and, as he says, accepted by Smith, by which Smith acquired an interest at that time in the “Emma” mine. Woodman directly and unequivocally denies that there ever was such a conversation, and he is corroborated by W. W. Chisholm, and Day, who show that there then was no such thing known as the “ Emma ” mine.
Bragg’s counsel rely on the evidence of Samuel Pease to prove that he had an office with Bragg in 1870, and heard general conversations between Smith and the parties there, that they yrere jointly interested in mining enterprises. He says that in 1870 he officed with F. A. Bragg & Co., composed of F. A. Bragg and James Smith. It is evident that if he is right in his statement of the persons-with whom he officed, he is mistaken in his date. Ho one pretends that Smith and Bragg had an office in Chicago after their dissolution, May 1, 1869.
He heard casual conversations, evidently having reference to the interests of the parties before the dissolution, but too indefinite to be of any special value, thus:
“ Int. 12. What was said as to the interest of Mr. Bragg and Mr. Smith by Mr. Smith, if anything?”
“A. I don’t know that anything special was said about' Bragg’s interest, or Mr. Smith’s interest. I understood that they owned some mines together, and were in business together.”
So they did, and so they were. They owned, with Jones, Steele and Sheriffs, the “Minna and Minerva” lodes, and they were in business as real estate brokers in Chicago, until their dissolution, May 1, 1869.
William Loomis says Bragg and Smith borrowed money of him for mining purposes. Understood they had equal interests. Smith had been at the mines and wanted to return.
The date of this conversation is not given. The precise questions and answers relied upon are as follows:
“Int. 19. Did he (Smith) say whether any one was interested with him in the mining investments ?
“A. Well, he and Bragg were occasionally talking together in my hearing, and they said 'we/ etc.”
“ Int. 20. What, if anything, did Smith tell you with regard to a joint interest?
“A. Well, I don’t know that he said anything in particular about it. Well, as I understood it, they had equal interests—him and Bragg—something to that effect. I used to sit and hear them talk, and I paid no attention to it.”
Obviously, no great reliance should be placed on such evidence as this. It proves nothing.
Finally, it is claimed by Bragg’s counsel that Henry Fuller testified that he took, from what Smith said, that he and Bragg were partners, and that they had a good mine. This is not evidence. It is mere impression—inference. What did Smith say? We can not know from this. Mr. Fuller may have drawn a very improper conclusion from the language used.
Sheriffs’ declarations are inadmissible to prove the allegations of the bill, even if we conceded them to be to that effect, which we do not. As a partner, we have seen, he would not be a competent witness, when called against his co-defendant, to establish the partnership, and a fortiori, his acts and declarations are not competent for that purpose. Bishop v. Georgeson, 60 Ill. 484; Smith v. Hulett, 65 id. 495.
As a trustee, he could not make any admission to the prejudice of the trust fund and against the cestui que trust. Thomas v. Bowman, 29 Ill. 426. Same case again in 30 Ill. 84.
The evidence showing how Smith acquired an interest in the “Emma” mine is strongly corroborative of the denial of Sheriffs and Geddes’ answers, and is, moreover, of itself, it would seem, sufficient to repel the idea that there could be a resulting trust in the interest Smith acquired in that mine, in favor of Bragg or any one else, for there can only be a resulting trust where property is acquired and held in the name of one person, which, in equity, belongs to another; and this can not be true of property given to an individual for his own use.
It is in proof that what was subsequently called the “Emma” mine was first discovered by Woodman in August, 1869, though Woodman had been at work prospecting there some time before, and he worked it thenceforth as the “Woodman” mine until in February, 1870, when it was located and recorded as the “Emma.” He shows that Smith’s interest in that mine was a gift. He says:
“ On the 30th day of August, 1869, Capt. Smith went with me to the mine and examined the ore at the mouth, and seemed well pleased. Next day I let him have my horse to = go to Salt Lake on his way to Chicago. He expected to return in a month. Walking a little way with him I said: ‘ Smith I am going to give you an interest in that mine, and if you can loan me some money when you return, to aid me in shipping the ore, why do so.’ He thanked me, and said it was more than he expected. According to my promise, I located him 200 feet in the mine in February, 1870. He returned in May, 1870, when I wrote to him, Day and Chisholm, to meet me in Salt Lake. On their arrival, we formed a partnership to work the mine.”
He further says, the name “Emma” was never applied to the mine until February 24, 1870.
James M. Day says: “ First became interested in the Emma miné about September 1, 1868, through Chisholm and Woodman, as joint locator with them. Assisted Woodman and Chisholm with money to develop the mine till August, 1869, when an ore body was found which constituted the Emma mine. About this time I met James Smith,—found him prospecting different mines. About the middle of November following, met Smith in Salt Lake City; he was then arranging his business matters to go to Chicago to spend the winter. At the same time I learned from Woodman that he contemplated making Smith interested with us in the Emma mine, and to charge him nothing. It was presented to him. That information was given me by both Smith and Woodman— that Smith acquired his interest without consideration; he was given to understand what his interest was in February, 1870, when he was placed with the rest of us as locators of the mine. During the summer and fall of 1869, Smith was- engaged in mining, superintending the works in the Illinois Tunnel— was also working upon other locations.”
Wm. Chisholm shows that in the summer of 1869, Smith worked, first in the Woodhull mine, in Brigham Canyon. In July, he went to Little Cottonwood Canyon to work on a mine called “The Gem.” He also worked the same summer on the Cincinnati and Illinois Tunnel, which was about 600 feet from the shaft of the “Emma” mine. Smith first had an interest in the “ Emma” mine shortly before its location in February, 1870.
The record of the location of the mine shows that it was located February 24, 1870, and that James Smith was one of the locators.
The evidence is clearly sufficient to overcome the loose general declarations of interest relied upon and which we have examined.
As is well said by Greenleaf, in his work on Evidence, § 200: “ With respect to all verbal admissions it may be observed that they ought to be received with great caution— the evidence consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake: the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say.”
We see no cause to disturb the decree below, and the judgment of the Appellate Court will, therefore, be affirmed.
Judgment affirmed.