Malcolm v. Hanmer

The ground upon which respondents chiefly rely for a rehearing is, that we decided this case upon an issue which is entirely new, made by the court, and not based upon any allegation in the complaint or in the answer herein."

We turn to the pertinent allegations of the complaint; it alleged in substance: That Pope represented himself to be the equitable owner of the mining property in question; that an agreement was entered into between plaintiff Christensen and Pope by means of correspondence; that it was agreed that Christensen would take over the handling of, and caring for, the mining property; that Christensen: "was to finance the necessary expense of caring for said property from the sales of personal property then upon said real estate, or from moneys which he might be able to collect from anyone owing money to the Mandarin Mines Corporation; and that in addition to handling and caring for said property, plaintiff was to adjust all matters in connection with the death of a watchman who had recently died while in the employ of the Mandarin Mines Corporation; that in consideration of said services the said defendant Pope agreed to give plaintiff a one-half interest in said property. *Page 84

"That pursuant to said agreement, the plaintiff immediately thereafter took over the management and entered into possession of said property, secured a settlement in connection with the death of said watchman, made and entered into leases of said property with options to purchase the same; performed a large amount of labor upon said mining claims in the way of annual assessment work and in the development of ore bodies therein, paid taxes assessed against said property in the sum of two thousand, one hundred five and 65/100 dollars, ($2105.65) and in every way carried on the exclusive management and care of said property continuously from the year 1921 to and including the year 1928, up to the date said property was deeded to the defendant E.W. Whitcomb, trustee, as hereinafter more particularly alleged.

. . . .

That during all of the time hereinbefore mentioned, subsequent to the entering into of said agreement between defendant E.W. Pope and the plaintiff herein, the rights of the plaintiff to a one-half interest in said property and/or the proceeds of the sale thereof, were recognized, approved and confirmed by said defendants E.W. Pope and E.J. Page.

. . . .

"That by virtue of the aforesaid agreement between the plaintiff and the defendant C.W. Pope, and the confirmation thereof by the defendant E.J. Page, as set forth in the said first trust deed, the plaintiff became the equitable owner of an undivided one-half interest in all of said property; and the said property and the proceeds from any sale of said property, or any part thereof, became impressed with a trust for the use and benefit of the plaintiff to the extent of a one-half interest therein; and that the defendant E. Whitcomb, trustee, and any and all of the defendants holding any title thereto, holds the same in trust for the use and benefit of the plaintiff to the extent of a one-half interest therein, and that each of the said defendants who at any time has held title to said property, or proceeds therefrom, or any part thereof, since the month of September, 1921, has held the same in trust for the use and benefit of the plaintiff herein to the extent of a one-half interest in said property."

Pope answered the complaint and admitted certain formal allegations therein, for instance, those alleging the corporate *Page 85 existence of the Condor, Buck Horn, and Treasure companies, and then denied "each and every allegation in plaintiff's complaint contained not hereinbefore specifically admitted."

By a further and separate answer and defense to the complaint, Pope then alleged: that no contract was made between him and Christensen; and upon information and belief, Pope also alleged that Page was the owner of the property.

Page answered and either expressly or in effect denied all the above stated and quoted allegations of the complaint, and expressly alleged that he was the owner of the mining property in question.

It will have been noted plaintiff Christensen alleged: That Pope represented himself to be the equitable owner of the mining property; that an agreement was entered into by correspondence between Pope and himself whereby Pope was to give him a half interest in the property; that by virtue of said agreement "and the confirmation thereof by the defendant E.J. Page", "plaintiff became the equitable owner of an undivided one-half interest in all of said property"; that "the said property and the proceeds from any sale of said property, or any part thereof, became impressed with a trust for the use and benefit of the plaintiff to the extent of a one-half interest therein"; that Whitcomb "and any and all of the defendants [which necessarily included both Pope and Page] holding any title thereto, holds the same in trust for the use and benefit of the plaintiff to the extent of a one-half interest therein." These allegations were denied by respondents.

The issues thereby formed were, First: Ownership of the mining property; that is to say, did Pope or Page own the property? Second: If Pope owned the property, did he contract to give Christensen a half interest therein? Third: Did Page take title to the property in trust for Pope and Christensen?

Those were the issues upon which the case was tried in the trial court, and those were the issues upon which we decided this case, stating them thus:

(1) "Is Pope, in truth and in fact, the owner of the property in question?" *Page 86

(2) "Did he contract to give Christensen a one-half interest in such property?"

(3) "Did Page take title to the property in trust for Pope and Christensen?"

It follows, then, there is no merit whatever in respondents' contention that we decided this case "upon an issue which is entirely new, made by the court, and not based upon any allegation in the complaint or in the answer herein", nor is there merit in any of the contentions made by respondents in their petition for rehearing; hence, the petition is denied.

Givens, C.J., and Budge and Ailshie, JJ., concur.