The Pioche weekly record. [volume] (Pioche, Nev.) 1877-1900, 1894-07-12

ever visited Ferguson district. He furnish
ed neither labor nnr means for the location
or development OF any claim there. When
defendant vent to the Ferguson district, he
took with him some mining tools thereto
fore used on the Lizard mine These tools,
or some OF them, we're purchased wheb both
Were engaged when working that mine,
and remained and were used there by de-
PENDANT after plaintiff mad sold the mine to
defendant Their value, while not definitely
shown, seems to have been rather insight
icant, especially after having been used two
or three seasons more or less.
Much evidence has been produced upon
the contended point whether the plaintiff
sold his interest in these tools to the defen-
dant in the fall of 1891, after or about the
time he sold the mine. | think the pre-
ponderance of the evidence, is that he did,
Especially when considered in connection
with the fact that he made no claim to
these tools after 1891, although often in
Strengthened circumstances, until bringing
this suit In the fall of 1892, plaintiff
sought loan or advancement of money from
defendant and failing in securing this,
matters ran along, without any assertion of
interest by the plaintiff, until about January
1894. He was seeking employment, turn
ing his hand in whatever direction he could
make an honest dollar, needing all and per-
haps more money than he could earn, knew
the mines at Ferguson in which he now
claims an interest, were being profitably
worked, and yet from November 1892, to
January, 1894 he never asked his alleged
partner for an examination into the bust
ness, share of the profits or participation,
in the work In 1892, the property was
bonded and sale for large sum was gene
rally believed to be imminent This was
known to plaintiff, and seems to have been
the moving cause for making the request for
about s. 900 to buy band of cattle in the
fall of 1892 He was not consulted about
the sale or the fixing of the terms, and made
no inquiry, and showed no interest in the
transaction, further than to open negotia-
tons for making a loan by expressing an
apology for past unfriendly aspersons and
desiring renewal of good fellowship with
the defendant. But the expected sale was
not consummated. The money was not
loaned and plaintiffs interest in the Fergu
son mines and in the defendants operations
seems to have remained dormant until the
fore part Of 1894, when another sale was
being negotiated. During this period the
defendant had been diligently devoting his
| energies to the successful exploration and
development of these properties. The
combine their efforts and means. In what
way did plaintiff contribute to the partner
ship after 1891? How did he perform his
part Of the agreement? Prior to that time
both parties had worked in and about the
properties they had located, either singly
or together, and both manifested an interest
in them, and contributed to the furtheranct
Of the interest of both therein. After thai
date they separate, follow different pursuits
seldom see each other and manifest no con
Germ in each others doings. A candid com
parison of the conduct and declarations o
the plaintiff and defendant before the fall o
1891, with what they were subsequent t.
that time, irresistibly leads to the conclusion
that whatever relation of mutual obligation
or partnership heretofore existed was theI
voluntarily abandoned. Is it reasonable t,
suppose, that if the plaintiff had really be
lieved he was partner in the Ferguson
mines that he would quietly and uncom
plainingly have followed other and less re
munerative employments without making
any effort or demand to share the profit o
join in the employment which his alleged
interest in these mines would entitle him t,
demand Of right Does it appeal to one
reason that he should have so completed
ignored, during this long period of financia
embarrassment a property and interes
which would have brought him S25, 900 ha,
the sale of 1892, been completed, if he hac
really felt or believed that he had any jus
claim thereto? Reasonable men do not S
act when they are so deeply concerned.
Much stress is put upon the point tina
a partnership once shown is presumed t
continue, and its abandonment or dissolu
ton, not being alleged cannot be, and ha
not been proven. This is a misconceptio
of the vital point. Admit that the partner
ship existed and that according to the cor
| tract the defendant should have located tn
plaintiff in these mines, and that in viola
| ton of such agreement he did not do 81
That of itself, creates no trust, raises Il
| equitable ground iustifying specific pei
, Torrance. At best it would be only
breach of agreement with the consequer
r liability to an action for damages. Some
+ thing more is plainly essential to the reli
q demanded. As heretofore pointed out, tt
i trust and equity arise from the conditio
that partnership effects, whether supple
money or labor have created, and were use
: in and were the means OF acquiring the pr
| perty, That partnership funds were tt
d moving consideration, and as those resourc
; were trust property for the equal benei
n of all Of the partners, court of equity W
r impose upon the property acquired thereb
n a trust, and decree to each, the same intere
:. in the property, as the partners had in ii
d resources.
t What contribution did the plaintiff NAL
r to the resources by which the Ferguss
t mines were acquired? OF muscle, time al
: attention, all he had to give, he contribute
n nothing, and of means, the most that can
d claimed for the proof is that the defendaI