for any definite price; but if we asked to state "whether there the time you concluded_the_trade azy agreement with Dr. Bissell e should buy that property for a which he replied, "No, sir." see versations between Bissell and ■ Hunter, early in October, 1878, the Missourians for $15,000 their Winnemuck and New Discovery the money of the associates on Exchange Bank. The purchase the name of Foss; but it was him and Hunter that Hunter thirds and Foss one third of The ey to pay for the share was by Hunter, Foss agreeing to reEer the one third. In order to inans to sell at $15,000, Hunter them that he was willing to sell his for that sum, and actually made e and conveyance to Foss at that The sum in dispute between the parties seems to have increased after the filing of the original bill, and before final decree amounted to $36,454.35. This sum, by agreement of the parties, was deposited in the registry of the court, and they stipulated that the decision of the court should settle their rights, not only to the fund claimed in the original bill, but to the whole amount in the registry of the court. On final hearing the circuit court decreed Messrs. John F. Dillon, L. C. Rockwell and "Tenants in common are placed in a confi- Tisdale v. Tisdale, 2 Sneed, 597. Cases are numerous and the doctrine is undisputed that if one of several tenants in common purchase an outstanding title it will inure to the benefit of all. not informed of the negotiations Lloyd v. Lynch, 28 Pa. St., 419; Jones v. Stanand purchase while they were go-ton, 11 Mo., 433; Weaver v. Wibel, 25 Pa. St., Fos requested Handley, the one 270; Picot v. Page, 26 Mo., 398; Van Horne v. ans with whom he treated for Fonda, 5 Johns. Ch., 406; Downer v. Smith, 38 set to tell Bissell of the sale. Vt., 464; Halsey v. Blood, 29 Pa. St., 319. See phase was completed Foss de- also Freem. Co-Ten. & Par. § 151; King v. Bissell to a one-third share of Wise, 43 Cal., 628; Clark v. Cantwell, 3 Head., d by the Missourians. 202; Gibson v. Winslow, 46 Pa. St., 380; Brit remained until November 16, tin v. Handy, 10 Ark., 381. Tabor party on the one side, and Hunter on the other, joined of their interests to B. M. tee, to hold seventy-three out dequal shares for the Tabor party, even for Bissell, Foss and Hunter; zent the mines were to be worked es made deposited in the First Park of Denver, one of the appellees, Under the celebrated classification of fraud the two parties in the propor- by Lord Hardwicke in Chesterfield v. Janssen, ***** On April 2, 1879, there was 1 Atk., 301; 2 Ves., 125; 1 Lead. Cas., in Eq., back to the credit of Foss, 428, this case, aside from the agreement and Eter. $92,502.58. It was in ref- promise, falls within the third class-fraud prevasion of this fund that this liti-sumed from the circumstances and condition of the parties contracting. "An agent or trustee undertaking a special business for another, cannot, on the subject of the trust, act for his own benefit to the injury of his principal." Dodd v. Wakeman, 26 N. J. Eq., 484; Parkist v. Alexander, 1 Johns. Ch., 396; Condit v. Blackwell, 7 C. E. Green, 486; Story, Eq., § 315. had been no purchase of the interest In this class of frauds the general rule is that rest in the share purchased of See also Bispham's Eq., § 232, p., 292; 1 ths of the fund and they twelfths. Frand Hunter, on April 26, herent suit in equity against cal Bank of Denver as the deabst Bissell as the adverse 17 Eine twelfths of the fund. d the bill and at the same tal in which it alleged that Kacholder claiming no inter praying that Foss, Hunter be required to interplead. ith the original and crossang 'our twelfths of the fund. Messrs. David P. Dyer and James O. The opinion of the court below (4 Fed. Rep., [257] [257] [258] Holmes v. Holmes, 44 Ill., 168; Remington v. Campbell, 60 Ill., 516; Goodwin v. Richardson, 11 Mass., 469; Wheatley v. Calhoun 12 Leigh, 284; Livermore v. Aldrich, 5 Cush., 431; Olcott v Bynum, 17 Wall., 51 (84 U. S., bk. 21, L. ed. 570); 4 Kent, Com., 337. Mr. Justice Woods delivered the opinion of the court: the share of the Missourians fell through. It could not be carried out without the assent of Hunter, and he did not assent. To show the fraudulent conduct of Foss and Hunter stress is laid, by counsel for the appel lant, on the fact that they deceived the Missourians by the pretense that Hunter was willing to sell and that he did actually sell his one fourth to Foss for $15,000, and thus induced them to sell at the same price. But as the Missourians were the only persons injured by this strategem, if any one was injured, and they do not com plain, we do not see how it concerns the appel Îant. The device by which Foss and Hunter made the purchase at $15,000 did not add to or detract from the rights of the appellant. And as he is seeking to get the benefit of the contract thus fraudulently made, as he alleges, it does not lie in his mouth to complain of a fraud of which he is seeking to share the fruits. It is clear that the appellant had no claim to the fund in controversy unless he had some title, legal or equitable, to the property which produced it. But he was not a party to the purchase of the property by Foss and Hunter. The Missourians, who owned the property, never bargained with Bissell to sell him any interest in their share, and never conveyed to him any interest in it. They contracted with Foss and Hunter only. Bissell never paid any part of the purchase money. It was paid exclusively by Foss and Hunter. His title, if he has any, is not Bissell had no ground upon which he could based on any contract of purchase made with base any contract right to an interest in the the Missourians nor on any contract or under-purchase made by Foss for himself and Hunter. standing between him and Hunter. He bases his claim on the conversation and agreement petween himself and Foss. This agreement, as stated by Bissell, was that Bissell and Foss should buy out the Missourians, for the benefit of themselves and Hunter, and divide the share equally between the three, and that each should pay one third of the purchase money. According to Bissell's own version the arrangement was based on the expectation that a large part of the purchase money could be paid out of the deposit of the parties in the bank. But the evidence shows that the money which they were at liberty to draw from the bank would pay less than one third of the price at which the purchase was made. Foss testifies that all his individual resources consisted of a small grocery store not paying much, and that he "waZ just living in the hope of beating Tabor." Looking at all the testimony it is impossible to reach the conclusion-unless we disregard altogether the evidence of Foss and rely entirely on that of Bissell-that there was any well defined agreement between them to buy out the Missourians at a specified price, or that the two had available resources to make the purchase. Nothing but an arrangement left at loose ends can be deduced from the evidence. But if the agreement had been clear and definite it could bind neither Foss nor Bissell until Hunter was consulted and agreed to it. If Hunter declined, the matter was at an end and there was no obligation on either Foss or Bissell to purchase for themselves or for themselves and Hunter. He paid no money on the purchase and he But the appellant insists that there was a mutual agreement between Bissell and Foss that if either made the purchase it should be for the benefit of all; that this agreement, although not amounting to a contract which could be specifically enforced if it had been made with a stranger, created between parties who sustained to each other the confidential trust relations which existed between these parties a constructive trust which would be enforced in equity. The contention is that these three parties were in such relations to each other that if one bought a share in the common property and business it inured in equity to the benefit of all, subject to the payment, by each of the associates, of his share of the purchase money. The relations from which this result springs are stated to be those, first, of joint tenants, and, second, of partners; and that, by reason of these relations, Foss and Hunter became trustees for themselves and Bissell in purchasing the share of the Missourians. The "ecord shows-and counsel for Bissell contel...that Foss told Hunter about the arrangement in reference to the purchase, between himself and Bissell. There is no proof that Hunter assented to the arrangement made between Foss and Bissell. It is clear that he did not assent, for he made a different arrange- It is true that one or two or more tenants in ment with Foss, by which he was to purchase common, holding by a common title, cannot and pay for two thirds of the share of the Mis- purchase an outstanding title or incumbrance sourians, and Foss the other third, and by upon the joint estate for his own benefit. Such which he was to advance all the money to make a purchase inures to the benefit of all, because the purchase, leaving the funds of the associ- there is an obligation between them resulting ates on deposit in the Miners' Exchange Bank from their joint claim and community of interuntouched. It is plain, therefore, that the pro-est, that one of them shall not affect the claim ject of Foss and Bissell for the purchase for to the prejudice of the others. the joint benefit of themselves and Hunter, of Dewees, 2 Black, 613 [67 U. S., bk. 17, L. ed. Rothwell v. 301 809]; Van Horn v. Fonda, 5 Johns. Ch., 388; | out consulting his associates, to sell his interest in It results as a conclusion from these premises that Bissell has suffered no wrong at the hands of either Hunter or Foss on the ground that they were his tenants in common or partners, by reason of any contract made between the latter in reference to the purchase of the share of the Missourians in their joint enterprise. There has been no violation of any trust and confidence arising from the relations existing between Bissell, Foss and Hunter. The appellant, it is therefore clear, cannot demand any part of the two-thirds interest purchased by Hunter in the share of the Missourians. If he is entitled to participate in any way in the purchase made by Foss and Hunter it can only be in the one-third interest purchased by Foss. But this demand cannot be based on any contract between Bissell and Foss, for the contract arrangement between them was conditioned upon the consent of Hunter, and Hunter did not consent. It was also an element of the agreement that the money of the associates on deposit in the bank should be sufficient and should be available to pay a large part of the money required for the purchase of the share of the Missourians. But this condition also failed. He was therefore bound by no contract with Bissell to make the purchase. Nor do we think that the relations of the parties as partners prohibited Foss and Hunter from making the purchase in question for their own benefit to the exclusion of Bissell. The association of Bissell, Foss, Hunter and the Missourians was not an ordinary partnership. It was what is known as a mining partnership, which is a partnership sub modo only, and is thus described by Mr. Justice Field in Kahn v. Smelting Co., 102 U. S., 641 [bk. 26, L. ed., 266]. Mining partnerships, as distinct associations, with different rights and liabilities at taching to their members from those attaching to members of ordinary trading partnerships, exist in all mining communities; indeed, without them successful mining would be attended with difficulties and embarrassments much greater than at present." He then quotes a passage from the opinion in Skillman v. Lachman, 23 Cal., 203, to the effect that a mining partnership is governed by many of the rules relating to ordinary partnerships, but also by some rules peculiar to itself, one of which is that one per- The only question which remains is, Was son may convey his interest in the mine and Foss bound, when he learned that the arrangebusiness without dissolving the partnership, and ment he had made with Bissell for the purchase then proceeds as follows: "The same doctrine of the share of the Missourians could not be is asserted in numerous other cases, not only in carried out, to inform Bissell of the fact, and that court but in the courts of England. Asso- give him a chance to join in the purchase made. ciations for working mines are generally com- by him and Hunter? It cannot be denied that posed of a greater number of persons than or- under the circumstances there was an obligadinary trading partnerships; and it was early tion on Foss to inform Bissell of the failure of seen that the continuous working of a mine, their plan before making another with a third which is essential to its successful development, person. But it was not a legal obligation cawould be impossible, or at least attended with pable of enforcing in foro externo, but only a great difficulties, if an association was to be dis-natural obligation to be disposed of in foro consolved by the death or bankruptcy of one of its members or of the assignment of his interest. 261] A different rule from that which governs the relations of members of a trading partnership to each other was therefore recognized as applicable to the relations to each other of mem- We are of opinion that the decree of the Cirbers of a mining association. The delectus per-cuit Court was right. It is therefore affirmed. Bona, which is essential to constitute an ordinary partnership, has no place in these mining associations. Duryea v. Burt, 28 Cal., 569; Settembre v. Putnam, 30 Cal., 490; Taylor v. Castle, 42 Cal., 367." This case settles two propositions: First, that the members of a mining association have no right to object to the admission of a strang into the association who buys the share of ne of the associates; and second, that the sale and assignment by one of the associates, of his interest, does not dissolve the mining partnership. It follows from these propositions, that one member of a mining partnership has the right, with scientia. Story, Eq. Jur., § 2. It was one of Mr. Justice Bradley and Mr. Justice Matthews dissented. True copy. Test: James H. McKenney, Clerk, Bup. Court, U. S [262] [257] [258] Holmes v. Holmes, 44 Ill., 168; Remington v. | the share of the Missourians fell through. Campbell, 60 Ill., 516; Goodwin v. Richardson, could not be carried out without the assent 11 Mass., 469; Wheatley v. Calhoun 12 Leigh, Hunter, and he did not assent. 284; Livermore v. Aldrich, 5 Cush., 431; Olcott v Bynum, 17 Wall., 51 (84 U. S., bk. 21, L. ed. | 5:0); 4 Kent, Com., 337. Mr. Justice Woods delivered the opinion of the court: To show the fraudulent conduct of Fossa Hunter stress is laid, by counsel for the ap lant, on the fact that they deceived the Misson ans by the pretense that Hunter was willin. sell and that he did actually sell his one fou to Foss for $15,000, and thus induced them sell at the same price. But as the Missouri were the only persons injured by this strategy if any one was injured, and they do not co plain, we do not see how it concerns the app lant. The device by which Foss and Hun made the purchase at $15,000 did not add to detract from the rights of the appellant. A as he is seeking to get the benefit of the contr thus fraudulently made, as he alleges, it does lie in his mouth to complain of a fraud of wh he is seeking to share the fruits. It is clear that the appellant had no claim to the fund in controversy unless he had some title, legal or equitable, to the property which produced it. But he was not a party to the purchase of the property by Foss and Hunter. The Missourians, who owned the property, never bargained with Bissell to sell him any interest in their share, and never conveyed to him any interest in it. They contracted with Foss and Hunter only. Bissell never paid any part of the purchase money. It was paid exclusively by Foss and Hunter. His title, if he has any, is not Bissell had no ground upon which he co based on any contract of purchase made with base any contract right to an interest in the Missourians nor on any contract or under-purchase made by Foss for himself and Hunt standing between him and Hunter. He bases his claim on the conversation and agreement between himself and Foss. This agreement, as stated by Bissell, was that Bissell and Foss should buy out the Missourians, for the benefit of themselves and Hunter, and divide the share equally between the three, and that each should pay one third of the purchase money. According to Bissell's own version the arrangement was based on the expectation that a large part of the purchase money could be paid out of the deposit of the parties in the bank. But the evidence shows that the money which they were at liberty to draw from the bank would pay less than one third of the price at which the purchase was made. Foss testifies that all his individual resources consisted of a small grocery store not paying much, and that he "was just living in the hope of beating Tabor." Looking at all the testimony it is impossible to reach the conclusion-unless we disregard altogether the evidence of Foss and rely entirely on that of Bissell-that there was any well defined agreement between them to buy out the Missourians at a specified price, or that the two had available resources to make the purchase. Nothing but an arrangement left at loose ends can be deduced from the evidence. But if the agreement had been clear and definite it could bind neither Foss nor Bissell until Hunter was consulted and agreed to it. If Hunter declined, the matter was at an end and there was no obligation on either Foss or Bissell to purchase for themselves or for themselves and Hunter. The record shows-and counsel for Bissell conte... that Foss told Hunter about the arrangement in reference to the purchase, between himself and Bissell. There is no proof that Hunter assented to the arrangement made between Foss and Bissell. It is clear that he did not assent, for he made a different arrangement with Foss, by which he was to purchase and pay for two thirds of the share of the Missourians, and Foss the other third, and by which he was to advance all the money to make the purchase, leaving the funds of the associates on deposit in the Miners' Exchange Bank untouched. It is plain, therefore, that the project of Foss and Bissell for the purchase for the joint benefit of themselves and Hunter, of He paid no money on the purchase and could not have been compelled to pay a either by the Missourians with whom he b no contract, or by Foss, who, after Hunter b declined to acquiesce in the arrangement tween Bissell and himself, could not have manded of Bissell that he and Foss should b for themselves. And if Foss had actua bought for himself and Bissell he could have compelled the latter to pay his h of the purchase money, for Bissell had nev agreed to such purchase. The agreeme could not bind Foss unless it also bound Bisse Bissell, therefore, did not by reason of his agr ment with Foss, acquire any interest in t share purchased by Foss and Hunter of t Missourians. But the appellant insists that there wa mutual agreement between Bissell and Foss th if either made the purchase it should be f the benefit of all; that this agreement, althou not amounting to a contract which could specifically enforced if it had been made wi a stranger, created between parties who s tained to each other the confidential trust re tions which existed between these parties constructive trust which would be enforced equity. The contention is that these three parti were in such relations to each other that one bought a share in the common proper and business it inured in equity to the bene of all, subject to the payment, by each of t associates, of his share of the purchase mone The relations from which this result springs a stated to be those, first, of joint tenants, an second, of partners; and that, by reason of the relations, Foss and Hunter became trustees f themselves and Bissell in purchasing the sha of the Missourians. It is true that one or two or more tenants common, holding by a common title, cann purchase an outstanding title or incumbran upon the joint estate for his own benefit. Su a purchase inures to the benefit of all, becau there is an obligation between them resultin from their joint claim and community of inte est, that one of them shall not affect the clai to the prejudice of the others. Rothwell Dewees, 2 Black, 613 [67 U. S., bk. 17, L. e Tan Horn. Fonda, 5 Johns. Ch., 388; | out consulting his associates, to sell his interest in Zach. 28 Pa. St., 419; Downer v. the partnership to a stranger, and that such a sale Ft. 464. injures no right or property of the other asso2rale cannot apply to Hunter and ciates. Much less does a purchase by one assoThey purchased no outstanding title or ciate, of the share of another, inflict any wrong ce, to the prejudice of the other ten- upon the other members of the partnership. They did what any tenant in There is no relation of trust or confidence beentire good faith might do, name- tween mining partners which is violated by the ed the interest of some of their co- sale and assignment by one partner, to a stranrat consulting the others. The tiger or to one of the associates, of his share in @wach they purchased of the Missourians the property and business of the association. agistic or hostile to the title of It results as a conclusion from these premTheir purchase did not in any degree ises that Bissell has suffered no wrong at the Are or damage his interest. His share hands of either Hunter or Foss on the ground rable after as before the pur- that they were his tenants in common or partrights were the same. In such a ners, by reason of any contract made between t or confidence is violated. the latter in reference to the purchase of the think that the relations of the par- share of the Missourians in their joint enterzeem parters prohibited Foss and Hunter prise. There has been no violation of any trust the purchase in question for their and confidence arising from the relations existto the exclusion of Bissell. The ing between Bissell, Foss and Hunter. Bussell, Foss, Hunter and the as not an ordinary partnership. known as a mining partnership, a partnership sub modo only, and is red by Mr. Justice Field in Kahn v. 192 C. 8., 641 [bk. 26, L. ed., 266]. partnerships, as distinct associaerent rights and liabilities at her members from those attaching of ordinary trading partnerships, ning communities; indeed, withessful mining would be attended es and embarrassments much haat present." He then quotes a pasopinion in Skillman v. Lachman, to the effect that a mining partnered by many of the rules relating perships, but also by some rules sed, one of which is that one pervey his interest in the mine and t dissolving the partnership, and as follows: "The same doctrine umerous other cases, not only in in the courts of England. Assoor working mines are generally comnumber of persons than or ag partnerships; and it was early ortinuous working of a mine, alto its successful development, The appellant, it is therefore clear, cannot de- The only question which remains is, Was has no place in these mining Mr. Justice Bradley and Mr. Justice Mat Duryea v. Burt, 28 Cal., 569; Set-thews dissented. am, & Cal, 490; Taylor v. Castle, westwo propositions: First, that famining association have no t to the admission of a strang Seaton who buys the share of ne and second, that the sale and ascof the associates, of his interest, wire the mining partnership. It e propositions, that one memaang partnership has the right, with- | True copy. Test: James H. McKenney, Clerk, Sup. Court, U. & [262] |