Thomas v. Frank

40 P. 762, 16 Mont. 297, 1895 Mont. LEXIS 143

• Court: Montana Supreme Court
• Decided: June 10, 1895
• Status: Published

Opinion

Hunt, J.

The only error relied upon by the appellant is the insufficiency of the evidence to sustain the verdict of the jury.

About 1883, Lee Mantle and others sued the occupants of certain portions of the townsite of Butte, claiming the ground under a quartz location called the £ ‘Diadem Lode. ’ ’ To resist this litigation the occupants organized as the “Destroying Angel Pool,” and the ground involved in the litigation was located by these plaintiffs and Archer as the ‘ ‘Destroying Angel Lode Claim.” This location was made for the benefit of the occupants on the ground under the townsite patent, as appears from the agreement offered in evidence on the trial. Under the terms of this agreement these plaintiffs and Archer, on January 19, 1884, agreed with a large number of persons that in view of the litigation heretofore referred to, and the contribution by them to carry the same on, to defend the same for the benefit of the parties to the agreement; and in consideration of the premises, and of the money so paid and furnished to said first parties (plaintiffs herein), they also agreed with all defendants in said suit, ‘ ‘who shall come in and pay and contribute money to defend said suit, that in case said defendants in said suit shall be successful in the defense of said suit and shall be the prevailing parties therein, and shall defeat said plaintiffs, Lee Mantle et al., in said suit, the said first parties will then deed and convey, by good and sufficient conveyance, such part or portion of the surface ground of said Destroying Angel lode as each of the said second parties, and other defendants who shall pay as aforesaid, claim and are entitled to. Said first parties further agree with said second parties that in case any part of the surface gr.ound shall be and remain after maldng said conveyances aforesaid, and after taking out such part or portion thereof, as said first parties claim as town lots, that they will convey to said second parties such part or portion of said remaining portions of said surface ground of said Destroying Angel lode claim as the amount of money paid and contributed by them shall bear to the whole amount expended in defending said-suit; that is to say, that after said first and second parties each get the amount of surface ground claimed by each of them as town lots, that any and all remaining parts or portions of said Destroying Angel lode claim surface ground shall be shared, and belong to said 'first and second parties, and others who may, as defendants, contribute to the defense of said suit as aforesaid, pro rata, according to the amount of money each may have paid towards said defense. ’ ’

It further appears that one Yan Gundy, of Deer Lodge, prior to 1886, had been the owner of the lot out of which the present suit grew. Yan Gundy neglected to pay his pro rata of the expense of the defense of the suit while the same was pending. It does not appear that Yan Gundy was directly a member of the pool, but that his property was affected by the litigation is admitted. Other claimants failed to pay, and plaintiffs were obliged to pay sums largely in excess of the amounts actually collected by the pro rata assessments upon lot owners, made under the terms of the agreement hereinbefore referred to. These excesses amounted to between $400 and $500. The defendant Frank bought the Yan Gundy lot about this time, and had some conversation with plaintiffs in regard to their right, title, and interest to the same by virtue of the Destroying Angel claim. There was, however, no definite agreement as to the price to be paid to plaintiffs for their interest. Defendant had a deed prepared, conveying the interest of these plaintiffs to himself. No consideration was expressed in the deed when it was prepared. A notary was then directed by defendant to take the deed to plaintiffs. Plaintiffs told the notary that the consideration to be put in was $200, and asked him to see defendant, and ascertain if that was satisfactory. The notary did consult defendant, and returned to plaintiffs, telling them, substantially, that defendant wanted the deed, and did not care what the consideration inserted was. Plaintiffs thereupon executed the deed, with a consideration of $200 written therein, and the same was delivered to defendant by the notary.

Defendant says he did not authorize the notary to make any agreement. The notary did not make any agreement, but did convey to defendant the fact that plaintiffs wanted a consideration of $200 inserted in the deed. After this message was taken by the notary, and delivered, the notary at once returned to the plaintiffs, and took their acknowledgment to the instrument. We think that the jury were justified in believing, from all these facts, that the defendant assented to the consideration of §200 demanded by the plaintiffs, and authorized the notary to secure their signatures, after he was told of the consideration. Any other inference, too, would be to cast a suspicion of willful deception and wrong upon the conduct of the notary himself, and would imply that he deliberately misled the plaintiffs into a false belief concerning the consideration named in the deed. Such an inference is not to be presumed, and is not warranted by the evidence.

Defendant says that he did not mean to pay plaintiffs anything more than he had paid on the amount assessed to Yan Gundy, which was §41.25. Doubtless, he honestly believed he might secure the interest of Yan Gundy by the payment of that sum. But when it is remembered that Yan Gundy had not paid his assessment when he ought to have paid it, and that these plaintiffs had to pay out some §400 to §500 more than the assessments for the litigation amounted to, it is but equitable and just that they should be reimbursed by those who were the beneficiaries of their expenditures, and it was clearly with a view to secure such reimbursement that they fixed upon the consideration of §200 before they were willing to execute and deliver the deed to defendant.

The appellants suggest that plaintiff had no right to demand this sum, but this suggestion is disposed of by answering that they did have an equitable claim to be reimbursed, and if the defendant, as the purchaser of an original owner, who had defaulted in his payment, desired to come in after such default, it does not seem at all inequitable that he should pay, as a consideration for the privilege, a share of the deficiency incurred by plaintiffs, who. had expended time and money in the litigation affecting the property.

The facts present a case where the jury were warranted in. finding as they did, and when we consider that two juries and a judge have reviewed the testimony, and reached the same conclusion, we do not feel a+- liberty to disturb it. We are of opinion, however, that, inasmuch as the plaintiffs evidently disregarded the check of defendant for the amount of the Yan Gundy assessment in the negotiations, .the defendant’s check for that sum, delivered to Beck, treasurer, should be returned to defendant, or, if the same has been presented- and paid, the amount thereof, with legal interest thereon since date of actual payment, should be credited to defendant on the amount of this judgment.

Let the judgment therefore be modified to conform to these views, and, as so modified, let it be affirmed.

Affirmed.

Pemberton, G. J., and De Witt, J., concur.