Eagle Mining and Improvement Co. v. Hamilton

OPINION OF THE COURT. ABBOTT, J. 1 That there was bptweeen the Eagle Mining & Improvement Company and Humphrey B. Hamilton a parol agreement under which he purchased the property conveyed to him by the two deeds above named is not practically in dispute between the parties, and as to most of its details they do not differ. Hamilton was to have the property deeded to himself, he was to receive from the company '$15,000 for the purchase of it, and was to have and retain for himself the excess of that amount above what he might have to expend to obtain the property. He was, besides, to waive his claim under an agreement with one E. S. Parsons for a commission on the sale of the interest of the latter in certain property which he conveyed to the Eagle Mining & Improvement Company direct. As to other particulars of the agreement between them, the parties differ. We think, however, that the undisputed evidence proves an express rather than a resulting trust. The difference between an express and a resulting trust is that the latter results or arises from circumstances which may be proved by any legal evidence, verbal or written; while the former is created by agreement not necessarily made in writing, but which must be manifested or proved by writing. Perry on Trusts, sections 26 and 79; Kronheim v. Johnson, 7 Ch. D. 60; Austice v. Brown, 6 Paige Ch. 448, 453. The judge who heard the cause found that the letters from Hamilton to the appellant' or its officers in relation to the subject matter, which were apparently not questioned by them at the time, established an express trust. That such writings are legally sufficient for that purpose is well settled. Perry on Trusts, Sec. 82; Uran v. Coats, 109 Mass. 581; Steers v. Steers, 5 Jones Ch. 1. That being the ease, it was for him to decide what were the terms of the agreement from the evidence. He found that the appellant agreed to furnish to Hamilton $15,000. which was to include the purchase price of the interests in land conveyed by the two deeds first above referred to, his pay for making the purchase and compensation for giving up the claim against E. S. Parsons above named, but not for other services rendered by him. In fact, there remained an amount, after deducting the purchase price, which would seem to be more than a liberal compensation for the services probably performed by Hamilton, but that is judging after event. It might have proved to be necessary to pay the entire $15,000 for the interests acquired, and in that case Hamilton would have been entitled to nothing for his services to the appellant in that matter, and nothing on account of his claim against E. S. Parsons. The Trial Judge found, too, that Hamilton was not .bound to give up the title to the property in question until he received the amount to which he was entitled from the appellant for services rendered in the purchase of it; in effect, that he had a lien on it for that sum. That was in accordance with repeated statements in writing made by Hamilton to officers óf the appellant corporation, and not questioned by them. 2 4 But the terms of the agreement were to be determined in the trial court, and were so determined, on evidence which seems to us amply sufficient to sustain the findings there made. The same is true of the findings that Hamilton was employed as the general counsel of the appellant, was entitled to compensation for services rendered in that capacity, and that the amount claimed therefor was reasonable. It is true that the evidence on some or all of these points was conflicting, but the weight and credibility of the evidence adduced were for the Trial Judge to determine, and if in the course of the trial he came to the conclustion that any witness had .testified falsely in a certain particular, he had the right to disregard all his testimony. That this court will presume a finding of fact was properly made unless the contrary plainly appears is too well established to require discussion. The appellant alleges error in the admission of the correspondence between Hamilton and Tilden, its president, and Sturgeon, its secretary and treasurer, on the ground that the statements in Hamilton’s letter were self-serving. and that it did not appear that the officers named had any authority from the board of directors or otherwise to bind the corporation in the matter in question, especially since, as the appellant claims, it was a past trans- • action. The correspondence related to co-temporary transactions, to the trust which had not been terminated by per-formanee of its conditions, and to the services of Hamilton which were then being rendered. 3 Ais Ave have seen, it was found by the Trial Court that the letters of Hamilton proved the existence and contained the terms of the express trust between the parties. They also contained statements relating to Hamilton’s service? as general attorney for the appellant. The only effect given to the letters from the appellant’s officers was that of •acquiescence in the correctness of the statements in Hamilton’s letters. It was not claimed that liability was created in that Avay, but that liabilities to and by the corporation which had been created in another way were not dis-avoAved, but recognized as existing. It does not appear that the findings of the court depend on this correspondence, since there was other evidence, including letters between Hamilton and Rice, the appellant’s general manager, who it Avas claimed in its behalf was the only one, who could bind it in such matters; but it is clear, we think, that the evidence was admissible on the question of acquiescence. Union Gold Mining Co. v. Rocky Mountain National Bank, 96 U. S. 640; 4 Thompson on Corporations 5228. 5 The elcArenth assignment of error relates,to the tax title set up by the appellant, and alleges a refusal by the court to rale on that question. We find no such refusal in the record. If the appellant considered that a material issue had been raised by its claim of title rmder tax deeds and the denial of appellees, its remedy for the omission of the court to find specifically on that point was not by a motion for a new trial, but by an application for further findings: Warner v. Foote, 40 Minn. 176; Eakin v. McCarthy, 2 Wash. Terr. 112; Bakersen v. Gilbert, 55 Minn. 334. No such application was made by the appellant, although the court had made the same omission in a memorandum opinion filed in the cause during its progress, to which the appellant had filed numerous specific objections without mentioning the failure to refer to the tax title, which could hardly have escaped notice. The appellant claims that there was error in allowing interest on the sum found to be due the defendant under the terms of the trust, on the ground especially that “he can make no profit of his office.” The claim of Hamilton was for services in obtaining deeds of the property to himself, and not for anything done after he became trustee. The Trial Court found that at a certain date he had done all that he had agreed to do for the appellant in relation to the property he held in trust, except to convey* that property to it, and that he was ready and offered to make conveyance on the compliance by it with the terms of the trust, and on that state of facts found, we think correctly, that he was entitled to interest on the compensation he -was to receive from the time it became due. Armijo v. Abeytia, 5 N. M. 533; Cyc. 22, 1495. Judgment sustained.