McNamara v. Keating

45 P. 464, 23 Nev. 236

• Court: Nevada Supreme Court
• Decided: April 5, 1896
• Docket: No. 1466.
• Status: Published

Opinion

By the Court,

Bonnifield, J.:

The plaintiffs, by their complaint, allege, in substance and in brief, that a partnership existed between them and Thomas McNamara, Sr., in certain claims against the Bailey, Humboldt and Alabama Mining Companies, corporations, in the sum of. $300 against each of said companies, for work and labor done by them in the year 1889, on said companies’ mining claims, located in Storey county, at the request of defendant, R. P. Keating, the then superintendent of said companies; that said Keating at the same time had a claim for the sum of $5,700 against each of said companies, for services as such superintendent; that the plaintiffs and Keating, in August, 1889, assigned all of their said claims to defendant, R. Pendergast, for the sole purpose of collecting the same in one suit against each of said companies in the name of said Pendergast; that the claims of the plaintiffs for the sum of $300, against each of said companies were assigned as aforesaid; that in consideration of such assignments the defendants promised to pay plaintiffs $900, the full sum of their said claims as soon as defendants realized and collected the same on judgments to be obtained against said companies; that suits were brought on all of said claims in the name of said Pendergast, in the district court of the state of Nevada, in and for Storey county, and judgments recovered for the full amount thereof against said companies, with interest and costs of the suits; that the defendants have, within one year prior to the bringing of this action, realized on said claims and judgments and collected more than the whole of all of said claims assigned as aforesaid by the plaintiffs and Keating to Pendergast; that no part thereof has been paid to the plaintiffs; that on the 16th day of November, 1893, said Thomas McNamara, Sr., died, leaving the plaintiffs herein the sole surviving partners of said partnership, and plaintiffs prayed for judgment against the defendants for the said sum of $900, with interest and costs.

The defendants demurred to the complaint on several specific grounds. The demurrer was overruled, and the defendants answered, their answers consisting only of denials. The case was tried by the court sitting with a jury. The jury returned a verdict in favor of the plaintiffs and against the defendants for the sum of $900. Judgment was entered accordingly, with interests and costs of suit taxed at $135 40. The defendants appeal from said judgment and the order of the court denying their motion for new trial.

There is evidence tending to show the following state of facts: That defendant Keating, in 1880, became the superintendent of the Bailey Mining Company, a corporation, the Humboldt Mining Company, a corporation, and the Alabama Mining Company, a corporation; that there is a mine known as the Bailey lode or mine, situated in Storey county; that each of said mining companies owned segregated portions of said lode or mine; that defendant Keating, as such superin- • tendent, had employed Thomas McNamara, Sr., to do the assessment work on this lode for said companies for several years, and had McNamara do all the assessment work for these companies on the Humboldt claim on said lode; that in April or May, 1889, Keating, as such superintendent, verbally leased to McNamara said mine; that by the terms of said lease the lessee was to run a tunnel and tap the bottom of a certain shaft, filled with water, situated on the Humboldt claim, and that the lessee was to have all the ore he might take out for six months from the date of tapping said shaft; that the plaintiffs, Thomas McNamara, Jr., and Michael McNamara, by agreement between the three, became partners with Thomas McNamara, Sr., in said lease, each of the three to have an equal interest therein; that as such partners they prosecuted work under said lease on said mine; that during said work they struck some ore or rock, had it assayed; defendant Keating saw the assay, and sent for McNamara, Sr., and proposed to allow him $900 for the work that had been done, $300 to be paid by each company, if he would assign, to R. Pendergast a claim for work in the. sum of $300 against each of said companies; that McNamara, Sr., thinking that Keating wanted to break said lease, refused to make the assignment; that Keating sent for Thomas McNamara, Jr., who went to said defendant’s office, and on inquiring of Keating if he wanted to break the lease, Keating informed him that they had no lease, that a verbal lease was not good; that McNamara, Jr., reported the same to McNamara, Sr., and they concluded that they had better take the $900 rather than get nothing; that Thomas McNamara, Sr., and Jr., returned to the office of defendant Keating, the superintendent, and that McNamara, Sr., executed the assignments as requested by Keating, with the knowledge and consent of plaintiffs, he (Keating) promising to pay therefor the $900 as soon as the same was realized on said claims and the judgments to be recovered against said several mining companies; that defendant Keating assigned to defendant R. Pendergast a claim of $5,700 against each of said companies for services rendered as superintendent thereof; that H. IT. Watson assigned to said Pendergast a claim of $500 against each of said companies for services as secretary thereof, the aggregate amount of the claims so • assigned being $6,500' against each company; that Pendergast brought suit in the district court of the state of Nevada, in and for Storey county, on these several assigned claims, against each company, and on the 5th day of December, 1889, recovered a judgment thereon, in each case, for the sum $6,500; that subsequently, and in 1890, the sheriff of Storey county duly sold the said several mining claims belonging to said several mining companies on executions issued on said several judgments, on the bids and for the sum of $5,000, $4,500 and $4,500, respectively; that the money derived from the sheriff’s sales was paid to the sheriff by defendant Keating; that the several mining claims sold at said sheriff’s sales were bought in the name of Charles Herschfeld, without his knowledge at the time; that he paid nothing therefor; that Herschfeld assigned the sheriff’s certificates of said sales to Joseph Marks, without consideration; that Joseph Marks received the sheriff’s deeds for said mining claims; that Marks conveyed said mining claims to the Hearst Gold and Silver Mining Company, a corporation, without consideration; that said Hearst Company sold and conveyed 2,183-2-feet of said mining claims to certain of the Comstock mining companies for $27,293 75, and conveyed to the California Title, Insurance and Trust Company, a corporation, 885 feet of said mining claims for an expressed consideration of $10; that over $21,000 of the amount of said sales to the Comstock mining companies have been received.

There are numerous objections made and points raised by counsel for appellants and urged by them against the sufficiency of the evidence and the validity of the judgment, among which are that “ the plaintiffs, nor either of them, ever had a valid claim of any nature against the said Bailey, Alabama and Humboldt Companies, or either of them”; that “ they performed no work or labor for these corporations, or either of them, nor did these companies, or either of them, ever promise for or without a consideration to pay the plaintiffs, or either of them, any sum of money whatever for work or labor or other cause or thing, and that these claims against said companies were ‘ purely fictitious.’ ”

While these alleged facts, if true, might have been proper grounds for the said companies to urge against the validity of these claims in the Pendergast suits, they certainly are not available to the defendants in this case. Whether these claims against said companies were valid or not is immaterial. But we discover nothing to impeach their validity, or the good faith of the plaintiffs, or their deceased partner, with reference thereto. As the evidence tends to show, they gave up whatever rights or privileges they had under the lease, which they considered to be and which might have been very valuable, and agreed to take in lieu thereof the sum of $900 for their work, and assigned these claims to Pendergast, at defendant Keating’s request, on his promise to pay them said sum when he should realize the same on judg ments to be obtained against said companies. Instead of these claims being fraudulent as against said companies, the record shows that their validity was admitted by said companies, and the judgments of the district court in said suits affirmed it. Not only this, but the work done under the lease, on the Humboldt ground, it would seem, inured to the benefit of all three of the companies, as the assessment work did which had been done for a series of years, at the same place, by Thomas McNamara, Sr., at request of defendant Keating, the superintendent of said companies.

We can see nothing but a plain business transaction between all the parties concerned in leasing these claims and in annulling the lease by agreement, the plaintiffs agreeing to take $900 for the work done, and said companies being made responsible therefor through their superintendent, and defendant Keating agreeing to pay the same when realized as before stated.

Counsel for appellants argue that “ there is no consideration to support said promise, if a promise be alleged, on the part of Keating, to pay plaintiffs, or either of them.” Certainly the assignment of said claims to Pendergast at the request of Keating is sufficient consideration for said promise on his part. It appears from Keating’s testimony that said assignments were of benefit and advantage, not only to him but to the said companies. His testimony is to the effect that one Bell held a fraudulent promissory note or notes against said companies in the sum of $15,000; that Bell was about to sue thereon; that in order the better to thwart the the unlawful designs of Bell and defeat the collection of his fraudulent notes, he (Keating) assigned his claim, and procured those other assignments to be made to Pendergast in order that suits might be brought thereon against each of-said companies before Bell brought his suit; that this was done to protect the stockholders of said companies against Bell’s said fraudulent demand, and that he (Keating) was at the time a stockholder in these companies to the amount of 30,000 shares, and that he was acting in the matter to protect his own interests as such stockholder. It clearly appears that the above-named objects and purposes were accomplished by means of said assigned. claims, said judg ments and sales of said mines to said Comstock mining companies, and that more than enough money was received from said final sales to cover the whole amount of said judgments. Defendant Keating in his testimony admits, in effect, that one of the $300 claims assigned to Pendergast is correct, but claims that it is payable to the estate of McNamara, deceased, and not to the plaintiffs, as he is advised by his attorney. It appears, however, that each of the $300 claims grew out of the same transaction and is a part thereof, and that all of them are based on the same facts and circumstances, and that said plaintiffs, as the surviving partners of said deceased, are entitled by law to collect whatever is due thereon.

We regard all objections and points raised by appellant’s counsel against the plaintiff’s right to recover as being merely technical and without merit.

We are of opinion that the judgment and order appealed from should be affirmed.

It is so ordered.

Bigelow, C. J.: I concur. Belknap, J., did not participate in the above decision.