.t.l." SWITZER.'
351
as complaillant, representing the interest of Matilda Scott, should have been grantecl in order that;the 'one proceeding should settle the rights of all the parties claiming under William J .. Wood. The decree appealed from is "theJ:e(ore reversed at the cost of appellees,andthe cause is remanded to ,the circuit court,with instructions topermit G. Scott,as representative of Matilda Scott, deceased, to become acocpmplainant in the bill, and to require Richard J. Doyle to ,be made, a, defendant to. the proceedings, in order that any right or claim he may hold to the property in dispute may be settled by the final decre.e herein; and whepthese steps have been completed a decree be the deeds and powereof attorney executed by Margaret BiUings, James O. Wood, and Charles E. Wood to David ;II. Devereux, or other parties, purporting to convey Robertson, their interests in the mining property in the bill described, and which are set forth in the bill herein filed, Sf1.ici decree to declare anel establish the right and title of the widow andchildren of William J. Wood to the one ,thir9 of said Emma mining propE:lrty as against the defendants Jerome B. Wheeler and tlle,Aspen Mining & Smelting Company, and to direct a properaccountjng between parties upon the. basis of the rights thus decreed.. !. ',:
WENHAM: 'D. "Il
.
(Circuit Court, D. Montana. June 27, 1892.) PRINCIPAL AND AGENT-EXOEEDING AUTHORITy-RATIFICATION.
Plaintiff authorized defendant to purchase for him a half intllrest in a mining claim for SI,noo, and sent $500 to be used as a first payment. Defendant purchased the whole mine for $40,000. and took a deed in his own name. He then wrote plainexplaining ,what he had done, and saying he would make'a deed for one half on receipt of $1,500 more. Plaintiff answered, accepting the offer, ,and asked for a more specific description of, the property. but sent no more' money; Defendant testified that he never receivod this letter. but that he wrote another letter, stating that the money must be paid within a certain time. Plaintiff said be never received this letter. He waited 10 months, and then sent $1,000 instead of $1,500, asking defendant to state the balance due. Held, that defendant, as plaintiff's aA'ent, had 'exceeded his power in the purchase, and his action was binding without ratification; that the letter ·of acceptance, without sending money, was not a sufficient ratification. received.; and that the delay of 10 months was unreasonable; and defendant had a right to repudiate the agency, and hold the mine as his own.
In Equity. Suit by A. A. Wenham against William S. Switzer. Bill.dismissed. For report Qf decision on motion to strike depositions from the files, see 48 Fed. Rep. 612. Word, Smith &; Word, for complainant. A. H. Nelson, for defendant. KNOWLES, District Judge. Plaintiff in his bill of complaint charges that he and defendant entered into a contract by the terms and condiit was agreed that plaintiff and defendant were top\lrtions of
852
FEDERAL REPOR'llER,
vol. 51.
chase:the Burner lode icillaiin;situate iit Summit Valley Mining· District, Silv.er;Bow. county, Mont;; that the defendant had the sole management of the negotiations for the purchase of said property; that it was &gl"!3edthat the same ·should be purchased for their joint benefit, and eaohwas to have an undivided half interest in the property; that defendantrepresented thai said property would cost about $3,000, and tlu;\t1theone-half interest which plaintiff would receive would cost about $1,;500, t/ae exact sum said,property would cost not then being known; that plaintiff firstadvanoed to defendant, on account of Said purchase, the sum of $500, wbichwas so received by defendant, and subsequently the sum of$l,000; that, instead of purchasing said property for ,the joint benefit of plaintiff, the defendant purchased said property inbia· own name; that he represented to plaintiff that he paid therefor the BUm of $4,000; that plaintiff tendered to said defendant the balanoeofsaid purchase price, namely, $500, with interest up to the date of tender, and at the same time presented to defendant a deed to be signed by him to the one half of said Burner lode, and demanded of him to deed the same to plainliff,which he refused to do. The defendant denies in his answer the alleged contract to purchase said lode for the joint benefit of himself and defendant. Readmits,that he re<the $500 and the $1,000 from plaintiff, but denies that he received the same on account of the purchase of the Burner lode, or used either of said sums in that purchase. The negotiations for the purchase of an interest in said Burner lode were parried on by letter. All of these letters, except three, are before me, and the contents of the missing letters were testified to on the trial before the, court. Plaintiff, it appears, is a citizen of Cleveland, Ohio, and the defendant of Butte City, Mont. Upon an examination of these letters, I find the facts to be that on October 2,)887, defendant owned a one-half interest in the said Burller lode. , 'On that date he wrote to 'plaintiff that he thought the other one .be bought for $1 ,500, and if plaintiff had a friend who desired thisorte half of it to let him know; that the claim was a good one; and that he had bought and paid about $2,000 for the other half. It appearl:l'[rom the evidence of plaintiff that he wrote to defendant, in answer to his. letter of October 2, 1887, making some inquiry about had mentioned. On March 7, 1888, defendant the claim wrote to plaintiff: "I think you will do well to secure the interest I spoke of, joining the Alta claim." . From the evidence it sufficiently appears that this referred to the property in dispnte. On March 15, 1888, plaintiff wrote to defendant: "Now, about the claim adjoining the Alta, I want to go in with you. Could the be bought !ur $l,OOO.90?1' On Aprl15, 1888, plaintiff wrole to defendant: "II(;w the claim adjoining tbeAlta claim? Can you secure L'le one half:yoll's'poke·of? Let me bear from you as soon as practicable."
WENHAM II. SWITZER.
853
On the 13th of April, 1888, defendant wrote to plaintiff: "In relation to the interest ·nearest the Alta, it can't be had for less than about $1,500.00, if it can be bought at any price, but I shall know in about twenty days, and I will write you as soon as I can get to know what I can let you have it for. He may get excited, and ask more." In the same letter he says: "One thing more: If you conclude to take the interest. you had better send $1,500.00 to the First National Bank of Butte, as if you wait it may slip into .other hands. I am good for aU you send me." On April 23, 1888, plaintiff wrote to defendant: "Yours of the 13th at hand, and contents noted. According to your wishes, I inclose you $500.00, pay&.ble to your order. This is a New York draft, and is a!l good as gold at the First Nationsl Bank in your city; in fact, the banks prefer drafts to currency. Now, if you go quietly to work, and not let the party who wants to sell get excited, when he agrees to sell give him the $500.00 to bind the bargain, and you can telegraph me for the other $1,000.00, which I will send immediately upon receipt of notice; and, if you can't buy all of his in terest, buy half of it." In answer to this the defendant wrote plaintiff: SIR: Yours of the 23d. 1888, is received, with one check of $500.00, on the First National Bank of Cleveland, Ohio. The mining lode claim is known as the Ontario or Burner lode mining claim. Soon as I can bear from the party, the matter will be concluded. The money is in bank." "MY DEAR
On June 4th following plaintiff wrote defendant a letter about loaning the money to one C. C. Frost, and he would replace it, but the money was not so disposed of. On June 5, 1888, defendant wrote plaintiff: "In relation to the Burner mining property, I have got it all, and paid for it, and surveyed it for a patent. But am doing one hundred dollars' worth of work. so as to have over $600.00 worth of work, which will be necessary improvement. I am sure of two veins in the ground. But it cost more than $1,500.00. It aU cost me about $4,000.00, all told. But I was determined to have it, if it cost more. It will pay to hold when patented. Property is rising in Park canon. Undet' the circumstances, I had to take a deed in my own name, and, of course, had to pay for it on delivery of the deed, and came near losing it at that; others would h8\'e taken it at higher figures. Now, friend A. A. Wenham. send me $1,500,00, and I will make you a deed of one undivided half of the entire Burner property, free of all work excepting the $100, which I am now doing, which will be over $600.00, sufficient to get the patent. Then you will have to stand one half of the expenses of the patent, which only is the regular prices in this district and territory. As I have received $500.00 of you, so the balance, $1,500.00, will make the purchase money of your part $2,000.00. I will [write] you more in detail next letter. " Plaintiff in his evidence testifies that he wrote a letter in answer -to this, accepting defendant's offer, and asking for a more specific description of the property. Defendant denies that he ever received this letter. Defendant in his evidence says that soon after he wrote to plaintiff, on June 5, 1888, he wrote him another letter, telling him he must pay the money to him (the defendant) within a certain time. Plaintiff v.51F.no.7-23
On plaintiff plat, specW,cations, a.nd and inclosed; hima,NewYork d!raJt fqr$l,OOO,:B.r>kjng him &rPount of bala"CJe due:him.'IOn 1889, defend·ant wrote plaIPtiff: . "Mr. A. A. Wenham: Your'l1ote of APl'il6th, 1889, containing onel check of one thousand [dollars,] I deposited in. :E:iriili Nlltiol'lal Bank for safekeephlg \1Ptil you call for It., . Also your five hundred[dollar] check is iJ;1pil>nk su,bjectt? Wf.Qte .defeQ.dllQtaskhlg,
denies that
u;..·.
. ."
.'
Then there is an offer to'iriveS't this money in Monitor stock. this follows: ., i'"'lcatl't,make yo'u any deed to orLn the Burner ground."
Then'
,. fr01ll.' of the the' transaction, set forth in the;bill, i/3not corr,ect.; between: plainijff -taken from letters which treat principally of otber, mlltte:\rs;'P:iostly abotit"tl1e . tunnel .on. the Monlitor lode. '.' The understandiilgi'V!is'tnat defehdll*(snould act as thei'ltgentfor plaintiff in purchasing the one half of tlie B'urner lode. This was a'voluntary undertaking, and it does notlippeartbat plaintiff was to pay anything or defendant408Sk anytbing forthi8',se.r.viee. It was not an agreement by which plaiQti'fl'and defendant were jointly to purchase the Burner lode, or that it{Mi,sense the a joint is enough that pl!\.iiltl'tr· did authoriie defendant to pnrchase' to tbati'llode .for $1,500, but not for any more. When defendant infofmedplaintiff. that he had better send him $1,500 witb which to purchase the claim,.plaintiffsenps him $500 in. a draft on a bank in which he: seems to be be connected, and informs hint 'tqatnbe : will: ,slllnd ; the fElmailling$l, oqo when t4epurchase is made.' In this there is no Ruthority to purchase thia interest in the fur aUYRinOunt to exceed $1,500. Defendant.could not plliit;ltiff by purch/lS6 of tbat ,lode which involved an expend.. Vure that atitount. An agent must pursue bill if he it; he makes himself personally liable. As he was not bound by any purchase of that property for $2,000. ' When defendant informed plaintiff tbat'he had paid; lib<mt $2,OOOfof'the one half of the Burner lode, and had taken tbe'<MPd .in hisQWn name; and. tbathe would deed to him the same on dp.fendant)of the $2,000 he had expended, pla,il(l#.ti'testified.thathe wroteto telling him he would take the ,property,but .lUlking .also for, plats and specific scriptions thereof.'Uj.Jdoubtl:ldly. Iilaintiff had a right to ratify this act of his agent, but was tbe simple notification that he would take the pJ,'operty,asufficieqt oftl1at act? I; think not. · He says he thes,e; specificlj.tions and. plats. What for:? ·:;Po' see whe$er, he the proposition qf defendant? I.tlooks'verY1lluchl1S iOhat;nig4t have been the motiye. He says he accepted t1wprqpoS,ition them. .' Why he should have wllitec:i. lQ send,ing any. uloney this accepted
show;'
on
· l:>U:NtQ' ,,; BARNUM: . ; "
855
'proposition explained. At the .end 0'('10 months plaintiff does not send to defendant the $1,500, which would be the balance of price of the property, but,only $1,000, and asks defendant to figurecup the balance. ·Plaintiff te<:tifies thllitheexpected the andexpenses for.procuring a patent to be includeQ representation, in this balAnce. This was not the proposition of defendant. The propO: sitian WM, that plaintiff' was topa)' $2,000, and was to have a deed for the one half of the Burner lode. l l his,was plain enough. There was no figuring to be done on the ba.lance. It was plainly stated by defendant in his letter to him what amount plaintiff was to pay as a bal. ance before receiving a deed. As defendant had undertaken to act as an agent. forplaintitf,he was requh·ed. to .be loyal to his trust. and not act for himself. But I do not think he was required to wait indefinitely to see Whether plaintiff would ratify his action in paying $2,000 for the property. PlaintHI' should have ratified the action of defendant within a reasonable time. Defendant says he wrote to plaintiff 'he must do this within. 30 days. Plaintiff testified that he received no such letter, and the evidence of defendant on this 'point is not as clear as it might be. But whether he wrote such a letter or not, it appears to me the delay of about 10 months in ratifying ,the action of defendant by plaintiff, as he should have done by paying to defendant the money he had expended, was unreasonable, and that defendant had the right to maintain that plaintiff had left him to shoulder the responsibility he had assumed, and to treat the purchase as his own. There is no pretense' but that defendant paid the full amount of $2,000 for the property. Although it might be held that the position claimed on the trial of the cause is only an immaterial variation from the case presented in the bill, still I do not think plaintiff is entitled to reCOVE'r, even upon this assumed position. The order of the court is that the bill be dismissed, and defendant have judgment for his costs.
DUNN
et al.
'V. BARNUM
(Oircuit Oourt
oJ AppeaZs, Etghth. Oircuit. July 19, 1892.) No. 105·.
L
PUllLIO LANDS-MILITARY LAND WARRANT-LoOATION ON SOHOOL I,ANDS.
The location of a military warrant upon land which has already been reserved by act of congress for school purposes is void, ,and neither the locator nor hill can acquire any legm or eql,litable rights thereunder to the land. Act JUly.27,I854, required the reinstatement of an entry by one P. under a mili-
B.
SAME-EFFECT 'OF CUR.ATIVE ACT.
tary warrant, of certa,n .land, theretofore .canceled by the commissioner of the
generlil land office, "so that the title to said lands may inure to the benefit of his grantees as far as he may have granted'the same, " provided that the money paid therefor, if Withdrawn, should. again 'be paid, and that a patent should thereUllon issue to him. Held;' that on the subsequent payment by P., and the issuance of a