Hope Mining Co. v. Burger

It is difficult to consider seriously the contentions of appellant. The decision of the trial judge is so manifestly just and equitable, and the conduct of appellant in the transaction between the parties so reprehensible, that probably- the only question which we ought to notice specifically is whether damages should not be imposed for a frivolous appeal.

However, largely out of respect for the learned counsel for appellant, who has manifested zeal and ability worthy of a better cause, we will devote some attention to the essential features of the case. There was some conflict in the evidence upon material points, but the conflict was created by the testimony of appellant and his brother, whose statements on the witness-stand are apparently characterized by -equivocation, evasion, and misrepresentation. It is therefore not surprising that their testimony carried no conviction to the mind of the trial judge. From the opinion filed in deciding the ease in the lower court we take the following facts:

The action was brought to compel appellant to convey to plaintiff certain placer mining claims described in the com

In December, 1910, the property was owned by one Thomas Clark, who entered into an oral agreement with defendant for its purchase, which was reduced to writing at Placerville on January 3, 1911. The written instrument was somewhat informal, but it recited the receipt of one hundred dollars from N. H. Burger, “being a partial payment on the bond of property known as the Landecker Mine and equipment on same. The price of said mine and equipment to be eleven thousand dollars to be paid as follows. ’ ’ Then followed the recitation of three installments, the first to be paid January 15 and the last April 1, 1911. It was agreed that a more formal contract should be prepared by Clark and delivered to defendant. This was done on January 14,1911, and at the trial this agreement was introduced in evidence. According to its terms the purchase price was fixed at fifteen thousand dollars, to be paid in four installments, the last one of four thousand dollars to be made on or before the 1st of November, 1911. At the same time it was orally agreed between Clark and Burger that this sum of four thousand dollars was not to be paid to the former but retained by the latter as a commission, it obviously being the intent that Burger should sell the property to another.

B. E. Burger, brother of defendant, undoubtedly knew of the terms of the agreement between Clark and appellant, and on January 3d he went from Placerville to Modesto and informed the principal stockholders of a mining corporation called the Alliance Company that defendant had an option on the Landecker mine, and wanted the stockholders to form a new corporation and take over the mine and option from his brother. He did this under an understanding with appellant. He had with him a copy of the Clark contract, afterward executed on January 14th, which copy he exhibited to the stockholders. At a meeting held the following night it was agreed that Wooten and Benton, two of the stockholders, with B. E. Burger, would examine the mine, and they proceeded to Placerville for that purpose, where they arrived on January 5th. The next day they and the defendant went out to the mine, and on the following night they met at defendant’s store and discussed the advisability of forming a new corporation to take over and operate the mine. Defendant informed Wooten

On October 30th Campbell and Perkins, two of plaintiff’s stockholders, went to Placerville and ascertained that defendant had the deed from Clark, and in explanation of this he told them that he had borrowed the four thousand dollars from a friend named Smith living in San Jose. In March, 1912, and before the expiration of the six months’ extension granted by. defendant to plaintiff in September, 1911, defendant bonded the property to other parties and the sum of six thousand dollars was received as an installment of the purchase price and divided equally between defendant and his brother.

There is abundant evidence to support the foregoing statements, and it is quite apparent therefrom that defendant acted dishonorably with plaintiff, that by his conduct and actions he led plaintiff to believe that Clark was to receive the full fifteen thousand dollars for the property, whereas defendant had a secret agreement to retain the said four thousand dollars which was to be paid by plaintiff. Appellant was guilty of a species of sharp practice which may be recognized as legitimate by some promoters, but it cannot be tolerated in a court of justice. It is plain enough that by agreement between plaintiff and defendant the former was subrogated to all the rights and privileges as well as the obligations of the latter under his agreement with Clark. Of course, this means the actual and not the ostensible obligations. Plaintiff believed that it was to pay the sum of fifteen thousand dollars, but this was by reason of the deception practiced by appellant, and when it had paid the sum of eleven thousand dollars, the actual burden imposed by the original contract, it had discharged its full obligation and was entitled to the deed from Clark. As plaintiff, therefore, paid the full consideration for the property, manifestly, appellant, in receiving the deed, be

There is some contention made that the agreement contended for by respondent was made by it and said B. E. Burger and that the evidence is insufficient to show that the latter was authorized to act for the appellant, and, furthermore, that the court improperly admitted as evidence of such agency the declarations of the said B. E. Burger.

There is no merit in the contention. The circumstantial evidence was amply sufficient to show the authority of B. E. Burger to represent his brother in the negotiations and contract with plaintiff. Indeed, the conduct of himself and appellant in the whole transaction is entirely inconsistent with any other theory than that of agency. It is clear that the acts of said B. E. Burger were of such character and so construed as to justify the inference that appellant knew of them and would not have permitted the same if unauthorized. Hence the acts themselves were competent evidence of agency. (2 C. J., p. 958.)

Moreover, appellant testified to facts from which the inference necessarily follows that his brother was authorized to represent him in the sale. He testified that before his brother went down to Modesto the latter said: “I can handle the proposition for you,” and appellant gave him a copy of the contract with Clark, and he knew what his brother went down there for and the purpose for which he took the note and the copy of the agreement, and knew what his brother was going to do. Of course, there could be no possible doubt that there was, at least, an ostensible agency within the purview of sections 2300-2317 of the Civil Code. (Dollar v. International Banking Corp., 13 Cal. App. 331 , [ 109 Pac. 499 ].)

Moreover, the finding of the court below does not depend upon the agreement made between respondent and B. E'. Burger. The evidence is sufficient to show that appellant directly agreed with the representatives of plaintiff that the latter should purchase the property for the price that the former agreed to pay Clark; in other words, that there should be a novation, a substitution of plaintiff for defendant in the contract with Clark. The question of agency -may therefore be entirely ignored.

Some question is raised as to the sufficiency of the evidence to support certain specific findings. The material findings are amply supported and the others need not be considered.

The judgment could be supported upon another theory, but we forbear to consider it further. The appellant appears in a very unfavorable light, and it is not surprising that the lower court believed that he was much more anxious to keep the property than to tell the truth or to act justly. We may add that, notwithstanding the judgment against him, he seems to have profited greatly by his cleverness. Without paying out anything, he received several thousand shares of stock of the plaintiff, about one thousand dollars in cash from the latter and six thousand dollars from Everett and Ames, to whom he bonded the mine. In good conscience the cash that defendant received should be paid over to plaintiff, but that consideration is not involved in this proceeding.

The judgment is affirmed.

Chipman, P. J., and Hart, J., concurred.