Botsford v. Van Riper , 33 Nev. 156 ( 1910 )

By the Court,

Sweeney, J.:

This action is brought by the plaintiffs L. C. Van Riper and Joseph Hutchinson to recover from the defendant Charles H. Botsford two-thirds of the profits of a' deal whereby the Goldfield Mohawk Mining Company and other mining interests paid as a commission to the defendant, Botsford, 100,000 shares of the Goldfield Consolidated mining stock then valued at $1,000,000, in consideration of his turning over a certain option which he held on the Combination Mines Company, which made it possible to merge the properties now constituting the Goldfield Consolidated Mines Company, and do away with certain threatened apex litigation then pending and other suits about to be started. This commission of $1,000,000 was earned during a period not in excess of forty-five days from the time the parties conceived and agreed to carry out their agreement along the lines of merging the properties to avoid litigation, and is but illustrative of the opportunities which are ever present in mining excitements in great mining camps to those who may be quick, able, and fortunate enough to grasp an opportunity and successfully put it through to a termination. Though this action was commenced by the respondents L. C. Van Riper and Joseph Hutchinson as plaintiffs against Charles H. Botsford and other above-named appellants as defendants, the real controversy is between the respondents L. C. Van Riper and Joseph Hutchinson and .the appellant, Charles H. Botsford. All the other appellants joined with Botsford are in the case nominally, and so far as this case is concerned do not seem to have any real interest in the dispute.

The complaint is one based on the doctrine of joint adventure, a doctrine of modern origin, and in effect alleges, in our judgment, the necessary allegations, which, if proved, entitle the plaintiffs to the judgment accorded them. The complaint in effect alleges:

"First — That the plaintiffs and defendant Botsford entered into an agreement to use their joint efforts for the purpose of securing a certain option and selling the same.

Second — That it was agreed that defendant Botsford should be the active agent of the adventure in the securing of the option and the sale of the same.

" Third — That the plaintiffs assisted in the furtherance of the venture in divers and sundry ways by counsel, introductions, and personal efforts.

" Fourth — That it was agreed in the event of the consummation of the venture the plaintiffs and the defendant Botsford should share equally in the profits realized.

"Fifth — That the adventure was successfully terminated under said agreement, and that the defendant Botsford was to receive 100,000 shares of stock of the value of $1,000,000 as compensation.

"Sixth — That defendant Botsford was attempting to get possession and control of all of said shares of stock, and refused to recognize the plaintiffs as being entitled to .any portion of the same as compensation for the securing and sale of said option.

" Seventh — That the defendant was without this state and insolvent.

" Eighth — Follows then the prayer that the plaintiffs be declared to be the owners of and entitled to a one-third each of any and all compensation either in stock or otherwise, which the defendant was entitled to by virtue of the consummation of the venture, and for an injunction restraining, and so forth.”

To this complaint a demurrer was filed, and thereafter an answer, which was thereafter amended. The answer denies all of the allegations of the complaint which would in any way connect the plaintiffs with the said defendant Botsford as a coadventurer in putting through the deal, and denies that there was ever any agreement or contract entered into at any time betwen the three parties concerning the subject-matter in the suit. The answer squarely raises the issue as to whether such an agreement, as alleged in the complaint, was made, and upon this substantial issue the case went to trial.

It appears from the testimony adduced, a record of some 3,000 pages, that Charles H. Botsford, the appellant, a New York promoter, an educated gentleman, and a mining éxpert of some reputation, and a business man of large affairs, during the fall of 1906 came to Goldfield, Nevada, when that camp was at the height of its mining excitement and prosperity. He came there for the purpose of investigating the conditions of a lease controlled by the plaintiff Van Riper, whom he had met in New York. Mr. Botsford had invested $15,000 in this lease, and more money being required to work said lease, the purpose of his visit to Goldfield was to determine the advisability of saving the investment, which would have been lost providing further capital was not forthcoming.

While in Goldfield on this mission, Mr. Botsford met the plaintiff Joseph Hutchinson, a mining engineer and promoter of wide experience and reputation and commendable ability, and learned that litigation had been or was about to be commenced by the Combination Mines Company against the Mohawk properties, claiming that the Mowhawk veins apexed in the Combination ground. At this time this threatened litigation, which, unless averted by compromise or otherwise determined, would paralyze the prosperity of the district, then in the throes of the wildest kind of a mining boom, caused the people of the camp of Goldfield the most tense feeling of excitement, apprehension, and anxiety, awaiting and hoping for a peaceful compromise or determination of this gigantic legal battle which seemed imminent, and which litigation would, for some time at least, tie up some of the richest mines in the very heart of the Goldfield mining district.

It is contended by Hutchinson, and so alleged in the complaint, and found in'the findings of the lower court, which, after a most careful review, owing to the great conflict of testimony on all the material issues, we have concluded not to disturb: That he conceived the idea of having the Combination Mines Company and the Goldfield Mohawk • Company merge their interests for the purpose of avoiding threatened litigation over the extralateral and other rights of said companies and the mining ground claimed arid owned by them, respectively, and during the month of September, 1906, he called the attention of his coplaintiff, L. C. Van Riper, and of the defendant Charles H. Botsford thereto, and submitted to them the idea of securing an option upon the control of the capital stock of said companies or either of them, and also submitted to them his scheme of consolidating or merging the interests of said companies. That the plaintiff L. C. Van Riper and the defendant Charles H. Botsford immediately became interested in such suggestions and in the scheme of consolidation or merger proposed by the plaintiff Hutchinson, and thereafter and during the months of September and October, 1906, they, in conjunction with plaintiff Joseph E. Hutchinson, made investigations and consulted with each other as to the most feasible plan of securing an option upon the control of the capital stock of said companies, or either of them, and also the most feasible plan of consolidating and merging the interests of said companies.

During all of said time the plaintiffs and the defendant Charles H. Botsford were jointly interested in other promotions and in other business enterprises. On or about the 27th day of October, 1906, in Goldfield, Nevada, an agreement was made and entered into by and between the defendant Charles H. Botsford and the plaintiffs L. C. Van Riper and Joseph Hutchinson, wherein and whereby they agreed to adopt the ideas and suggestions made by the plaintiff Joseph Hutchinson, and to use their joint efforts to secure an option Upon the control of the capital stock of the Combination Mines Company for the purpose of effecting a sale thereof, and they also agreed to use their joint efforts to bring about a consolidation or merger of the interest of the Combination Mines Company with other corporations then existing, or thereafter to be organized.

It was also agreed by and between said parties in and by the terms of said agreement that any and all profits, commissions, or compensation that might be realized or made from such enterprise or from their or either of their efforts in the premises should be divided equally between them; that is to say, that the defendant Bots-ford should receive one-third thereof, and the plaintiffs Hutchinson and Van Riper should each receive one-third thereof. It was also agreed by and between the parties in and by the terms of said agreement that the defendant Botsford should have the exclusive charge and control of all negotiations relative to the obtaining of said option and the sale thereof and the effectuating of such merger, but that in conducting such negotiations the defendant Botsford should act for and represent the plaintiffs as well as himself.

It was also agreed that each of the plaintiffs should render such services in the premises as might be required of him by the defendant Botsford and under his direction. Pursuant to the terms of the agreement, and on or about the 14th day of November, 1906, the plaintiffs and the defendant Botsford secured an option upon the controlling interest in the capital stock of the Combination Mines Company, said option being taken in the name of the defendant Botsford to enable him to more effectually conduct the negotiations necessary for the sale thereof and the consummation of said merger, but that said option was taken in his name and held by him for the joint benefit of himself and each of the plaintiffs.

Thereafter, on or about the 5th day of December, 1906, the defendant Botsford sold and assigned said option to the defendant Goldfield Consolidated Mines Company. That by securing the said option and the sale and assignment thereof to the defendant Goldfield Consolidated mines-Company a merger was brought about and effected between the Combination Mines Company and the Goldfield Mohawk Mining Company. That during all of the negotiations which resulted in the obtaining of said option and the sale and assignment thereof to the defendant Goldfield Consolidated Mines Company, the plaintiffs rendered such services as were required of them. That at all of said times the defendant Botsford acted under and in accordance with the terms of the agreement aforesaid, and during all of" such negotiations the defendant Botsford acted for and represented the plaintiffs as well as himself. That, in consideration of the obtaining of said option and the sale and assignment thereof to the defendant Goldfield Consolidated Mines Company, the defendant Botsford was to receive, and did receive, for the joint benefit of himself and the plaintiffs, 100.000 shares of the capital stock of the Goldfield Consolidated Mines Company, which said stock was worth at the time of the commencement of this action $1,000,000, or $10 per share. That out of said 100,000 shares so received by the defendant Botsford 55,000 shares thereof were issued and delivered to parties other than the plaintiffs, who advanced moneys to enable the plaintiffs and the defendant Botsford to make the initial payments upon said option.

The defendant Botsford received from the defendant Goldfield Consolidated Mines Company 45,000 shares of its capital stock as net profit, commission, and compensation for securing the option aforesaid and for the sale and assignment thereof to the said defendant Goldfield Consolidated Mines Company. That said stock was received by the defendant Botsford under and in accordance with the terms of the agreement made and entered into between himself and the plaintiffs L. C. Van Riper and Joseph Hutchinson, and said stock was received by him for the joint benefit of himself and the plaintiffs Van Riper and Hutchinson. That at the time of the commencement of this action an injunction was issued out of the lower court restraining the defendant Goldfield Consolidated Mines Company from issuing or delivering said stock to any person or persons, company or companies, until the final determination of this action; but that, notwithstanding such injunction, the defendant Goldfield Consolidated Mines Company did, at the request of the defendant Botsford, issue to and in the name of John S. Cook as trustee, certificates representing said 45.000 shares of the capital stock of said company.

During the time said certificates were issued and held by said John S. Cook as trustee, dividends amounting to the sum of $9,000 were declared upon said 45,000 shares of stock, and that all of said sum of $9,000 was paid to and received by the defendant Botsford, and by him appropriated to his own use, and that no part thereof was paid to the plaintiffs, or either of them. On or about the 5th day of December, 1907, the injunction heretofore issued in this action was by order of the lower court dissolved, and immediately thereafter the certificates representing the said 45,000 shares of the capital stock of the Goldfield Consolidated Mines Company which had been issued to, and in the name of, John S. Cook, as trustee, were indorsed by him and delivered to the defendant Botsford, and thereafter the defendant Botsford surrendered said certificates to the defendant Goldfield Consolidated Mines Company, and caused new certificates in lieu thereof to be issued as follows, to wit: A certificate or certificates representing 2,000 shares thereof in the name of George S. Nixon and a certificate or certificates representing 43,000 shares thereof in the name of M. Toping. That no consideration whatever was paid by said M. Toping or received by the defendant Botsford for the certificates so issued in the name of M. Toping, and no part of said stock was ever delivered to the said M. Toping, but the certificates representing all of said 43,000 shares of stock were delivered to the defendant Botsford, and said certificates were issued in the name of M. Toping at the request of the said defendant Bots-ford, and to subserve his own purposes, and the defendant Botsford thereafter procured and caused the said M. Toping to indorse the same, and the defendant Botsford has at all the times since the issuance of said certificates had the same in his posssssion and under his control. That certificates representing 30,000 shares of the capital stock of the Goldfield Consolidated Mines Company so issued in the name of M. Toping, and delivered to the defendant Botsford, still remain in the possession and under the control of said defendant Botsford.

During the trial of the above-entitled cause in the lower court and on or about the 29th day of January, 190.8, an injunction was issued out of said court, restraining the defendant Botsford from transferring or in any manner disposing of 30,000 shares of the capital stock of the Goldfield Consolidated Mines Company so held by him for which certificates were issued in the name of M. Toping, and also restraining the defendant Goldfield Consolidated Mines Company from transferring any part of said 30,000 shares of the capital stock of said company, for which certificates were issued in the name of M. Toping, or from doing any other act that would render ineffectual any judgment that may be rendered in this action.

At or about the time the plaintiffs and the defendant Botsford secured an option upon the stock of the Combination Mines Company, an agreement was made and entered into by and between the defendant Botsford and C. J. Moore wherein and whereby it was agreed that the said Moore, in consideration of services-rendered or to be rendered by him in and about the premises, should receive a share of whatever profits the defendant Botsford might make out of said proposed merger, but this agreement was thereafter modified by said parties, and, in lieu of an interest in the profits, said Moore was paid the sum of $25,000 in cash, and said sum of $25,000 was accepted by said Moore in full payment of any and all services rendered or performed by him in the premises, and in satisfaction of any claim that he might have to an interest in said profits under the terms of the agreement made and entered into with him as aforesaid. That the defendant Botsford did not expend any moneys of his own in the securing of said option or in the effecting of said merger, but that all moneys necessary for that purpose were secured from other parties, and that said parties were repaid and compensated for the moneys advanced by them out of the 100,000 shares of the capital stock of the Goldfield Consolidated Mines Company, which was received as a gross profit, commission, and compensation for the securing and assignment of said option. That the plaintiffs have fully performed each and all of the terms, covenants, and conditions of said agreement to be by them kept and performed, and they have during all of the negotiations which resulted in the securing of said option and the effecting of said merger furnished the defendant Botsford with such information and money and have performed such services as were required of them. That the agreement made and entered into between the defendant Botsford and the plaintiffs was acted upon by all of the parties thereto.

On these findings of fact the lower court awarded a judgment to each of the plaintiffs of 15,000 shares of the capital stock of the Goldfield Consolidated Mines Company as their portion of the commission in stock and $6,000 accrued dividends on said 30,000 shares of stock, less one-third each of $25,000 in cash which was paid to Mr. Moore by appellant. From this judgment and order of the lower court denying appellant’s motion for a new trial, this appeal is taken.

It is strenuously argued by the able and eloquent counsel who represent the appellant in this case that the whole agreement, as alleged in the complaint, never in fact existed, and from start to finish there was a conspiracy on the part of the respondents to defraud the appellant out of the two-thirds of the profits of this deal, which he contends was conducted solely by him and without any agreement whatever between the respondents L. C. Van Riper and Joseph Hutchinson and himself, and that they were not in any way interested or concerned.

The lower court, in its opinion, in speaking of this conspiracy to deprive Botsford out of a substantial portion of his commission, says: "It is very earnestly and eloquently contended in Mr. Botsford’s behalf that a conspiracy was entered into by the plaintiffs and Webster Bishop to defraud Botsford of a substantial part of the fruits of his labors. There is absolutely no evidence in this case which would warrant the court, even by the remotest inference, in concluding that a conspiracy was entered into. A conspiracy must be established by clear and convincing proofs, and not by the tenuous inferences or exsufflicate surmises of counsel, however cunningly awakened or eloquently depicted. ”

A very careful review of the testimony in this case convinces us, also, that such, a conspiracy has not been proven, neither do we feel warranted in saying, after a most thorough examination of the entire record, that there is not such sufficient substantial evidence introduced to have warranted the lower court in its findings on which it predicated the judgment in this case against the appellant. Further, we are of the opinion that there is such a substantial conflict of testimony on all the material points and issues raised that we would not be justified or authorized to depart from the well-established law in this state that, where there is a substantial conflict in the testimony on material issues, this court will not disturb the findings of fact in the lower court. •

The main point in this whole controversy is, as we view the case, whether or not such a legal enforceable agreement has been pleaded under the doctrine of joint adventure in the complaint of respondents as to justify the lower court, if such an agreement as pleaded is proven, to have rendered the judgment and decree that it did in behalf of plaintiffs. We are of the opinion that the complaint states a good cause of action under the doctrine of joint adventure, and the findings of fact on which the judgment of the lower court was found are sufficiently broad to maintain that judgment.

Counsel for the appellant contend that no legal agreement is pleaded, in that there is no consideration on the part of respondents sufficiently plead or proven to warrant the court in enforcing the contract alleged in 'the complaint, even conceding that such an agreement as pleaded was entered into. Counsel seem to be of the impression by reason of the fact that appellant did most of the negotiations and work of putting through the deal that the small part played by respondents, even if their testimony granted be true, would not be sufficient con- • sideration on which to create a valid contract that could be enforced. In this respect we totally disagree. If the respondents entered into a mutual agreement with appellant, as alleged in the complaint, to secure the option in question for the purpose of making the deal, and did no more than to make the suggestion by advice and counsel, and pointed out to appellant the status of the properties in controversy and the scheme which led up to the deal, and placed the appellant in touch with the situation, and the appellant agreed to do all the other work in consummating the idea and plan of merging the properties into the deal, and agreed with respondents to divide equally the profits of the deal, this mutual agreement, founded on mutual promise of aid, assistance, counsel, and effort, would be a sufficient consideration to support the contract under the doctrine of joint adventure. (23 Cyc. 454; Alderton v. Williams, 189 Mich. 296, 102 N. W. 753; King v. Barnes, 109 N. Y. 267, 16 N. E. 332; O’Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Gorham v. Heiman, 90 Cal. 346, 27 Pac. 289; Jones v. Patrick, 140 Fed. 403; Shea v. Nilima, 133 Fed. 209, 66 C. C. A. 263.)

We do not wish to be understood, however, from what we have stated, that we doubt respondents did not do a great deal more than appellent gives them credit for in bringing to a successful termination this mining deal from which the profits of the commission sued upon originated. The lower court in commenting on this point very properly says: "Common honesty requires that every person who makes an agreement should effectually live up to it, whether the agreement involves a merger of large mining interests or is simply an ordinary transaction, and the mere fact that one of the parties may have contributed more than his quota of talent and energy to the consummation of the deal does not justify him in disavowing his promise, or of refusing to give to his associates what he agreed should be theirs. ”

The law is well established that property purchased or acquired in connection with a joint adventure or profits realized from a joint adventure of the joint property of the parties interested, where one party holds title to the same, that such property is held in law to be the property of his associates, and the party holding the same is holding their proportionate share as trustee for them. (23 Cyc. pp. 455-459; Hayden v. Eagleson, 15 N. Y. St. Rep. 200; Fueschsel v. Belleshiem, 14 N. Y. St. Rep. 610; Richardson v. McLean, 80 Fed. 854, 26 C. C. A. 190; Morris v. Wood, 35 S. W. 1013; Lyles v. Styles, 15 Fed. Cas. p. 1143, No. 8,625; Cunningham v. Davis, 47 S. W. 140; Matthews v. Kerfoot, 64 Ill. App. 571; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035; Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; Calkins v. Worth, 215 Ill. 78, 74 N. E. 81; Putnam v. Burrill, 62 Me. 44; McCutcheon v. Smith, 173 Pa. 101, 33 Atl. 881; Getty v. Devlin, 54 N. Y. 403; Church v. Odell, 100 Minn. 98, 110 N. W. 346; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; Hancock v. Tharpe, 129 Ga. 812, 60 S. E. 168; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Marston v. Gould, 69 N. Y. 220; Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; Williams v. Love, 2 Head, 80, 73 Am. Dec. 191; King v. Wise, 43 Cal. 628.)

We further find that the law is well established that the relation between joint adventurers is fiduciary in its character, and the utmost good faith is required of the trustee, to whom the deal or property may be entrusted, and that such trustee will be held strictly to account to his coadventurers, and that he will not be permitted by reason of the possession of the property or profits, whichever the case may be, to enjoy an unfair advantage, or have any greater rights in the property by reason of the fact that he is in possession of the property or profits as trustee than his coadventurers are entitled to. The mere fact that he is intrusted with the rights of his coadventurers imposes upon him the sacred duty of guarding their rights equally with his own and he is required to account strictly to his coadventurers, and, if he is recreant to his trust, any rights they may be denied are recoverable. (23 Cyc. 455; Cole v. Bacon, 63 Cal. 571: Hambleton v. Rhind, 84 Md. 456, 36 Atl. 597, 40 L. R. A. 216; Seehorn v. Hall, 130 Mo. 257, 32 S. W. 643, 51 Am. St. Rep. 562; Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904; Getty v. Devlin, 54 N. Y. 403; Hollister v. Simonson, 18 App. Div. 73, 45 N. Y. Supp. 426; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Delmonico v. Roudebush, 5 Fed. 165; Morris v. Wood, 35 S. W. 1013; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; O’Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Calkins v. Worth, 215 Ill. 78, 74 N. E. 81; King v. Wise, 43 Cal. 628.)

Counsel for appellant seem to lay stress on the fact that by reason of the appellant putting up most of the costs in putting through this deal, and the fact that the respondents were financially embarrassed, that this is further proof indicative of the weakness of or lack of the consideration of the agreement sought to be enforced. As before stated, the mere mutual promise of the parties furthering and rendering their aid, advices, and suggestions, if agreed to was sufficient consideration to support the contract under joint adventure; but the law is well established that the furnishing of capital by the parties to a joint adventure is not necessary to the validity of the contract, so long as the original agreement on which the contract was entered into was carried out. (Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Van Tine v. Hilands, 131 Fed. 124.)

The evidence discloses, and the findings of the lower court are to the effect, that the respondents performed their part of the contract entered into, and stood ready at all times to further aid, as far as laid in their power, pursuant to their agreement, the consummation of the deal originally agreed upon. That they were not called upon to do so by appellant is not a sufficient reason in law or equity to invalidate their right to- share in the profits of the deal, because the appellant saw fit to take the reins and do most or all of the work himself after the original agreement was made and entered into.

The fact that it required large sums of money to carry the deal through, counsel for appellant seem to believe vitiates the consideration of the agreement alleged, for the reason it is admitted respondents were practically penniless. We fail to see any merit in this contention. Appellant himself did not possess the means to carry the transaction through, and, in order to acquire means-to-do so, appellant bartered away 50,000 shares of the commission which belonged jointly to the parties to the agreement, and which was valued at $500,000, for the use of $50,000 in cash from Mr. Davis, and bartered away another 5,000 shares of the commission to result from the deal in consideration of $25,000 cash advanced by Mr. Haskell. Money was not the consideration of the agreement advanced on the part of the respondents, nor is it so pleaded nor contended, but it was the scheme, claimed to have originated in the brain of Hutchinson, and supplemented by advice and aid of Hutchinson and Van Riper, and bringing to the attention of Botsford the possibilities of the deal, which are the very good and sufficient considerations advanced by respondents, as against the carrying out of the plan of the deal by Botsford, to the exclusion of seeking or accepting less and less aid and advice ex industria from the respondents, as the success of the venture became more apparent and effected.

Money advanced by one party to a joint adventure is held to be a loan to the venture, for which the party is entitled to be reimbursed out of the proceeds of the venture; but, by reason of the advancing of such money, it does not entitle the party so advancing to any superior right as against his coadventurers. (23 Cyc. 457, 458; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Thurston v. Hamblin, 199 Mass. 151, 85 N. E. 82; Stone v. Wright Wire Co., 199 Mass. 306, 85 N. E. 471; Burhans v. Jefferson, 76 Fed. 25, 22 C. C. A. 25; Sanguinett v. Webster, 153 Mo. 343, 54 S. W. 563; Woodward v. Holmes, 67 N. H. 494, 41 Atl. 72; Beamy v. Fisler, 52 Atl. 703; Rankin v. Black, 1 Head, 650; Crenshaw v. Crenshaw, 61 S. W. 366, 22 Ky. Law. Rep. 1782; Williams v. Bove, 2 Head, 80, 73 Am. Dec. 191; Gee v. Gee, 2 Sneed, 395; Withers v. Pemberton, 3 Cold. 56; Furman v. McMillian, 2 Lea, 121; Finlay v. Stewart, 56 Pa. 183; Stover v. Flack, 30 N. Y. 64; Doane v. Adams, 15 La. Ann. 350; Belly. McAboy, 3 Brewst. 81.)

The law is also well established that, in the absence of an express agreement, the law implies an equal division of the profits of a joint adventure without regard to any inequality of contribution. (23 Cyc. 459; Wetmore v. Crouch, 150 Mo. 671, 51 S. W. 738; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; Van Tine v. Hilands, 131 Fed. 124; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035.)

Counsel for the appellant assign as error the decree of the lower court, in that it awards plaintiffs a share of the stock rather than a money judgment, and that in this action the court, under the pleadings, was not authorized to have made an accounting between the parties. The law, however, is well established that a party to a joint adventure holding the profits of the venture may be held to account to his coadventurers for their share of the property representing such profits in kind, and we see no error in the court giving respondents their share of the'stock.

In the case of Delmonico v. Roudebush, 5 Fed. 165, the plaintiff demanded that he be declared the owner of a one-sixteenth interest in a certain mine. The court found that the defendant held a one-fifth interest in the mine as the net compensation for negotiating the purchase and sale of a certain option and gave the defendant a one-sixteenth interest of the one-fifth interest found to represent the net profits of the transaction.

In the case of Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570, a certain proportion of stock held by the defendant as net profits of a joint adventure was awarded to the plaintiff. The profits of a joint adventure may consist, not alone of money, but of the unsold portion of the property which was the subject of the venture, or of property received as compensation for services rendered in connection with the venture. (23 Cyc. 460; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035; Scott v. Clark, 1 Ohio St. 382; Delmonico v. Roudebush, 5 Fed. 165; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Marston v. Gould, 69 N. Y. 220.)

It is also well settled in law that one party to a joint adventure may sue the other at law for the breach of the contract, or share of the profits or losses, or a contribution for advances made in excess of his share, but the remedy at law does not preclude a suit in equity for an accounting. In this state, under our code of procedure, the district court in proper cases may administer both legal and equitable relief. (23 Cyc. 453-461; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Petrie v. Torrent, 88 Mich. 43, 49 N. W. 1076; Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; McElroy v. Swope, 47 Fed. 380; Van Tine v. Hilands, 131 Fed. 124; Edson v. Gates, 44 Mich. 253, 6 N. W. 645; King v. Barnes, 109 N. Y. 267, 16 N. E. 332; Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y. Supp. 13; Marston v. Gould, 69 N. Y. 220; Kirkwood v. Smith, 47 Misc. Rep. 301, 95 N. Y. Supp. 926-929; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035; Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904; Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 11 L. R. A. 149; Corbin v. Holmes, 154 Fed. 593, 83 C. C. A. 367; McMullen v. Hoffman, 75 Fed. 547.)

One party to a joint adventure may set off against the demand of another amounts advanced by him toward the venture or payments made by him in behalf of the plaintiffs; and in this respect the court was justified in so deducting the amount expended by the appellant in behalf of Moore from the judgment given in favor of respondents. (23 Cyc. 461; Armstrong v. Henderson, 99 Va. 234, 37 S. E. 839; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714.)

We do not believe there is any merit in the contention of the appellant that the court erred in making an accounting of the amount expended, and in deducting the same from the amount found to be due plaintiffs, as the law applicable to the rules of partnership applies to joint adventures, and in suits between partners for amounts due them accountings are always allowed in an action of this character. The rules and principles of the doctrine of partnership apply generally to the relation of joint adventure. (Church v. Odell, 100 Minn. 98, 110 N. W. 346; O’Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Marston v. Gould, 69 N. Y. 220; Wilcox v. Pratt, 125 N. Y. 688, 25 N. E. 1091; Kirkwood v. Smith, 47 Misc. Rep. 301, 95 N. Y. Supp. 926; Stone v. Wright Wire Co., 199 Mass. 306, 85 N. E. 471; Calkins v. Worth, 215 Ill. 78, 74 N. E. 81; Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y. Supp. 13; Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370; Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904; Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; McMullen v. Hoffman, 75 Fed. 547; Van Tine v. Hilands, 131 Fed. 124; McElroy v. Swope, 47 Fed. 380; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Delmonico v. Roudebush, 5 Fed. 165; Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570.)

In conclusion, it is proper to observe, as the pleadings allege, and as the testimony discloses and findings of the lower court set forth, that these three coadventurers jointly entered into an agreement, as alleged in the complaint, and which the court has found was entered into to consummate this deal, which resulted in so great an amount of good to the Goldfield mining district, and which paid so handsomely in profits to the parties undertaking the task of bringing the interests together and thereby avoiding the litigation, which threatened to paralyze the district. The whole case, it appears to us, resolves itself into a pure question of fact, as to whether or not the agreement pleaded in the complaint was entered into by the respective parties, and the lower court having so found that such an agreement was entered into, after a careful, thorough, and exhaustive examination of the evidence in this case, we do not feel justified or warranted on this appeal in setting aside or disturbing the judgment of the lower court based on its findings, heretofore referred to, where the material testimony is so conflicting on the material issues.

Under the pleadings and the principles governing the doctrine of joint adventure, which we have herein discussed, we believe the judgment is amply sustained by the pleadings, evidence, and findings, and we are therefore of the opinion that the judgment of the lower court must be affirmed.

It is so ordered.