Nisbet v. Nash

1. One of several parties engaged in a mining venture may, at his pleasure, sell his interest in the property acquired; but he cannot, except under special circumstances of wrong or oppression, maintain an action for partition. Our statute fixes the relations, duties, and liabilities of parties engaged in mining ventures toward one another; and it was the intention of the Legislature in giving to a party thus engaged with others the right to put another in his place without interrupting the business, to take away the common-law right of requiring a dissolution of the copartnership, and as well the right of a cotenant to demand partition of the common property. As a rule it would be ruinous to mining enterprises if the owner of a small interest in the mine could demand as matter of right partition or sale of the mining property. 2. The majority in interest of a mining partnership have the right to control the working of the mine and the affairs of the company. (Dougherty v. Crary, 30 Cal. 300.) In this case, Nash, Fletcher, and Sexey owned three-fourths of the mine, and John Nisbet the other fourth. Together they had prosecuted work for more than three years for opening and developing the mines, and had expended more than three thousand dollars on the work. The contractors, of whom the plaintiff was one, abandoned their contracts, and the company, or at least three of the four members of it, determined that it was for the best interest of the company to suspend work for the time and to wait until a supply of water could be obtained at reasonable rates. They did not abandon the mine nor the purpose to work it, but only suspended work for the time. This the majority in interest had the right to do. (Civil Code, sec. 2520.) That section declares that “ the decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business.” 3. Under the contract between Sexey and Fletcher of the [549] one part, and Nash and Nisbet of the other, the plaintiff was not entitled to demand or claim any portion of the five thousand dollars purchase-money from Sexey and Fletcher until it should be made out of their share of the net profits arising from the use of the property conveyed. P. O. Hundley, for Appellant, Plaintiff. 1. That when Fletcher and Sexey purchased an undivided half of the mining claim from Nisbet and Nash, and actually engaged in the working of the claim, expending the sum of three thousand dollars and over, they became mining partners. (Civil Code, sec. 2511; Taylor v. Castle, 42 Cal. 370.) The facts of the case clearly show that they were mining partners; they purchased the property for the purpose of working it as a mine. They actually engaged in the working of the mining property as they had agreed to do. It was continued from 1865 to 1869. They expended over three thousand dollars in that time in the working and development of the mining premises. 2. The partnership having been formed and commenced its existence, it continued until dissolved in some mode known to the law. The evidence in this case nowhere discloses the fact of the dissolution of the partnership thus formed, nor was it in fact ever dissolved. 3. That the sale made by John Nisbet to William Nisbet of his interest in the mining property, and the assignment of the amount due to him from the partnership, did not dissolve the partnership. One of the partners in a mining partnership may convey his interest in the mine and business without dissolving the partnership. (Civil Code, sec. 2516; Duryea v. Burt, 28 Cal. 569; Taylor v. Castle, 42 Cal. 370.) 4. The Court having decided that appellant was entitled to partition of the property, he had also, under the allegations of the complaint, a right to an accounting of the partnership transactions, provided the evidence in the case disclosed the fact that there was a partnership existing between the owners. This, we think, the evidence clearly established. By the Court : The Court erred in finding that plaintiff and defendants were not mining partners. They were. The Court should have found whether or not the partnership had been dissolved. If on a re-trial the District Court shall find that the partnership has been dissolved, the decree must be for an accounting. If the Court shall find that it has not been dissolved, it will become its duty to determine whether or not plaintiff is entitled to a decree of dissolution; and if it shall find that plaintiff is entitled to such decree, the decree should also provide for an accounting. It is not necessary, at this time, to determine whether J ohn Nisbet is a necessary party to this action, or to proceedings for an accounting. Judgment and orders denying new trial reversed, and cause remanded for a new trial—each party to pay one-half the costs of these appeals.