Li~ SPONDENTS. (DEFENDANTS)
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ON APPEAL FROM THE OF APPEAL FOR BRITISH COLUMBIA
An oral agreement between a free miner and two prospectors whereby the latter were to do, on a certain mining claim, whatever work was necessary to keep up all assessments, record the same, manage and look after the claim, place it under Crown grant, handle, option and sell it, is no mere contract for work and labour, but makes the prospectors agents of the free miner in what they are to do and establishes a fiduciary relationship whereby the prospectors must in equity be held to have become trustees for the miner and they or their representatives must account to him for all sums of money received thereunder.
Under such arrangement, an action by the free miner for a share of the proceeds received and a declaration of trusteeship in respect to the moneys paid to the prospectors is not " asserting an interest in a mineral claim which has been located and recorded by another free miner" and sect. 19 of the Mineral Act (R.SB.C. 1924, c. 167) does not apply.
Nor is the action barred by the Statute of Frauds (R.S.B.C., 1924, c. 95), the agreement, being one only for the division of the proceeds of the sale of land, does not come within the 4th section of the statute. Discussion of the doctrine of laches. When the action is not barred by any statute of limitations, mere lapse of time is not sufficient to deprive one of his equitable rights.
In order to decide whether the remedy should be granted or withheld, the courts must examine the nature of the acts done in the interval, the degree of change which has occurred, how far they have affected the parties, and where lies the balance of justice and injustice.
Under an agreement for a division of the proceeds of a sale, the claimant can wait until the sale is completed by the payment of the price before starting his action for an account and for his share of the proceeds.
Judgment of the Court of Appeal (42 B.C. Rep. 276) reversed. *PRESENT:-Duff, Rinfret, Lamont, Smith and Cannon JJ.