OPINION OF THE COURT.
WRIGIiT, J.Appellant assigns twelve grounds of error, the first ten of which are to the same effect, viz., that the court erred in finding and holding certain facts and conclusions of law set out in its written findings and final decree. The remaining two assignments go respectively to the jurisdiction of the court to try the case without a jury, and the admission of illegal and improper testimony. Dpon the hearing, and in the briefs, the appellant abandoned the 11th and 12th assignments of error and therefore the same will not be considered by the court.
. 1. The third assignment of error sets out that the court erred in finding and holding that the appellant promised and agreed, on or about the 5th day of August, 1907, ox at any other time, with the Consolidated Mining and Smelting Company, through its agent, W. A.-Brown, or otherwise, to do and perform the annual assessment work upon the six mining claims for the year 1907, and in finding and holding that the appellant from time to time notified the Consolidated Mining and Smelting Company, through its agent W. A. Brown, or otherwise, that.such work was being done, or that any of such work had been done. In discussing this finding of fact the appellant contends that there was no testimony in the record to support such finding, except the testimony of W. A. Brown, the resident agent of the Consolidated Mining and Smelting Company, and further contends that W. A.'Brown was a discredited .witness before the court and as such, his testimony was not entitled to any weight. This case was tried before the court without a jury and the court had an opportunity to observe the conduct and demeanor of the witness upon the stand and was the judge of the weight to be given to the evidence of such witness as W. A. Brown. The appellant further contends that there is nothing whatever in the record to corroborate the testimony of W. A. Brown.
It appears from the record that upon the trial W. A. Brown, for the purpose of refreshing his memory as to certain dates and circumstances, referred to and read, from his letter press copy boob, extracts from certain letters written by him to the officers of the Consolidated Mining and Smelting Company at Erie, Pa. Appellant contends that the very fact that these copies were used instead of the original letters .casts suspicion upon such testimony. An examination of the record, however, discloses that counsel for the appellant made no objection whatever to the use of such letter press copies, and he cannot be heard to complain of secondary evidence, at this late date. An examination of the record also discloses that the appellant, in March, 1908, went back to Erie, Pa., and entered into negotiations with Mr. Thomas Brown and Mr. Rosenzweig, the president and attorney, respectively, of the Consolidated Mining and Smelting Company, looking to a settlement of certain claims he and DeLallo, who had relocated the six mining claims which are the subject of controversy herein, claimed against the Consolidated Mining and Smelting Company. At such time he made statements to Mr. Brown and Mr. Rosenzweig, as testified to by them by depositions, which'are in direct conflict with his testimony given upon the witness stand, .and also, at that time, signed certain instruments introduced in evidence, which are in direct conflict with his testimony given upon the witness stand. The testimony given by Mr. Brown and Mr. 'Rosenzweig, and the instruments signed by the appellant are directly corroborative of the testimony of W. A. Brown. It therefore appears from a careful examination of the record in this case, that the findings of fact so made, by the court are sustained by a clear preponderance of the evidence.
8. The appellant also took an exception to the finding of fact by the court that the appellant wrongfully, intentionally and fraudulently neglected to .do the work on said six claims as he had promised and agreed, with the intention of deceiving and defrauding said company, and that thereafter the plaintiff entered into a combination and conspiracy with Joseph and Thomas DeLallo to relocate said mines and actually participated, aided and assisted the said Joseph DeLallo and Thomas DeLallo in the relocation of said mining claims after midnight of 'the 31st day of December, 1907, thereby fraudulently securing to himself, through a subsequent transfer of title made to him by DeLallo in March, 1908, the said six mining claims formerly owned by the Consolidated Mining & Smelting Company.
1 In considering this finding the appellant contended that there was no direct evidence whatever in the record upon which such finding could be based; that the court based his finding solely upon suspicion and inference. TTpon examining the record, however, we are unable-to come to any such conclusion. The testimony of .both Thomas and Joseph DeLallo and that of the appellant relating to the circumstances surrounding the relocation made after midnight of December 31, 1907, clearly indicate that such relocation was made in fraud of the rights of the Consolidated Mining arid Smelting Company by the appellant and the two DeLallos working together. The subsequent actions of the appellant, O’Neill at Erie, in the presence of Thomas Brown and Mr. Rosenzweig fully corroborate such a finding so made by the court.
3. The findings of fact by the court being fully sustamed by a clear preponderance of the evidence, there remains to be considered the question of whether or not the conclusions of law based thereon are correct.
By reason of his contract and agreement made August 5, 1907, to do the annual assessment work upon the six mining locations involved herein, the appellant became the agent of- the Consolidated Mining and Smelting Company for that purpose. An examination of the record discloses the fact that for a number of years prior to 1907, O’Neill had been regularly employed to do this assessment work; that at the time he so conspired with the DeLallos in the relocation of said mining claims he was residing in a house belonging to the Consolidated Mining and Smelting Company upon one of the claims so relocated. It further appears that during the years prior to 1907 the company had placed implicit confidence in O’Neill and relied upon him to do the assessment work. The evidence further shows pears that during the years 1903 to 1906 inclusive O’Neill had faithfully attended to the assessment work and had been paid therefor.
In Vol. 1, Bindley on Mines (1st ed.) Sec. 407, it is held: "An agent, trustee or other person holding confidential relations with the original locator will not be permitted to relocate mining claims and secure to themselves advantages flowing from a breach of trust obligations.”
This doctrine is sustained in the case of Argentine Mining Company v. Benedict, 18 Utah 183, 55 Pac. 560; Lockhart v. Leeds, 195 U. S. 427; Lakin v. Sierra Buttes Gold Mining Co., 25 Fed. 337; Lockhart v. Rollins, 2 Idaho 503, 514, 21 Pac. 413; Largey v. Bartlett, 18 Mont. 265, 44 Pac. 962; Fisher v. Seymour, 23 Colo. 542, 49 Pac. 30.
2 It therefore follows that the appellant having taken advantage of his position as agent and representative of the Consolidated Mining and Smelting Company and thereby fraudulently obtained title to the said mining claims, which in equity and good conscience belong to the Consolidated Mining and Smelting Company, he will be charged in equity as a trustee of the Consolidated Mining and Smelting Company, the equitable owner thereof. Lakin v. Sierra Buttes Gold Min. Co., cited supra. Hunt v. Patchin, 35 Fed. 816.
The attorney for the appellant in his brief contends that the mere fact that the appellant agreed to do the annual assessment work upon these mining claims for the year 1907, created no such confidential or fiduciary relationship' as is contended for by the appellee. However, we think that it is clearly settled by the courts that the agreement made by the appellant with the Consolidated Mining and Smelting Company under the circumstances under which the same was made, clearly indicates that such a fiduciary relationship did exist.
We conclude, therefore, that the findings of fact made by the trial court are clearly sustained by the preponderance of evidence and that the conclusions of law drawn therefrom by the court are correct.
There being no error apparent in the record, the judgment of the lower court is affirmed, and it is so ordered.