DANIEL '11. BROWN.
DANIEL '11. BROWN
Colorado. February 17, 1888.)
Ina suit to set aside a deed of mining property on the ground of fraud, plaintiff's evidence, on motion for a receiver and an injunction, showed that defendants had discovered ore on the mine before they bought plaintiff's interest in the mine from his agent, bilt he did not clearly prove that this discovery had been concealed from his agent, and·failed to prove, as alleged in his bill, that defendants agreed to pay the ag!3ntadditional compensation for his o,wn interest in ,thll mine, which they had also bought, conditioned on the value,of ,the ole tlieymight take out. The agent received a larger proportional price for his own interest in the mine than that he obtained for plaintiff. Held, that the. evidljnce was insufficient to sustain the motion.
.In Equity. On motion for injunction and .';'J;4:is was a suit brought by George M. Dalliel against David R. C. Brown, ;Elwer 'r. :Butler, James M. Downing, John C. Eames, George H. HewC. Bates to set aside certain conveyances. itt,: J. F.. Downing, :'fhe billalleges that plaintiff,authorized one Thomas Bracken to sell plaintiff's half interest in a certain mine for the best price he could obtain, not less than that defendants Brown, Butler, Eames, and discovered a large body of valuable ore on this mine, and, fraudulently concealing this discovery from Bracken, induced him to sell to defendant Hewitt, for their benefit. plaintiff's half interest in the mine for $5,000; that, at the same time, they purchased Bracken's quarter interest in the same mine for $3,000, and the promise of a larger sum, conditioned upon the value of the ore they might take out; and that defendants had taken $250,000 worth of ore from ,the mine. a. J. Hughes, for plaintiff. Patterson & Thomas and J. B. Belford, for defendants.
' I think the bill in this case states facts which, if sup. ported by evidauce, would call for the relief which the plaintiff demands, the question whether the plaintiff be entitled to any such orders as he now asks for turns upon the evidence. I think the evidence terids to prove that ore was discovered in this mine by Mr. Eames before the contract was made for the purchase of the property. I do not attach much weight to;the circ.umstance that Mr. Bracken got moreJor his interest in tbe property" in proportion to the amount of his interest, than giventot'Pe It often happens, among tenants in common, that one for his interest in the property than is obtained by another, and, according to my observation, those .who own small interv.33F.no.15-54
ests very commonly do ask more than the owners of larger interests. It is true that, under some 'circumstances, and" especially when there is reason to that the agent is not acting in good faith, the fact that more is paid to him for 'any interest that he may have in the property than he gets for his priIlcip,al may b13 of some value; but upon that cirshould not attach very much importiwce to it in reaching a couelu!:lion as to whether fraud was practioed in the negotiation. If, as,lll1egedin this bill, Mr. Eames covered up the ore with a view to conceal it, and to make abetter bargain than ,he would otherwise have been able to make, the plaintiff might, I think, avoid the sale upon that ground. But the evidence upoIi that point is not satisfactory. witness tEllltifies to itoJ;l behalf of. the plaintiff, and that is met by the denials of the defendants,. and by the testimony of other witnesses whp apas gOOll opportunities to know fact as the plaintiff's witness., ,So, also, if there was an agreement by Mr. Brown to pay from theproceeds'of the mine further and additional consideration to Mr. tQatw,ould be a fraud lipou<plaintift' Qer,e-woulp. show; that ,lmproper had been used to obtain the contract from BrsQken, -and upon that the sale, as Itbink,might be avoided. But the evidence upon that poil\t fails also. The, plairltiff ltlleges it in his bill, ,and he rec.itEls ihe which he,b.asfiled sonja statements that',p',sve been ll1ade' by Mr. Bracken in to it; bht''thatcannot beregat<ied knew nothing, ¢ that himself, and apparently as evidence: ' The heisdnven'td rely upon the testimony 'Of'Brakeri 'in respect to ,it, and not been given. So that; whatevet 'the plaintiff maybe able to ptpve'upon the final hearing of this case,'as alleged by him in his :bill,and as h13 ,will have to maintain it if he expects relief, is not sUStained"in alJ)'annerwhidh calls for any action of the court at this time, and" " the'lMdtlon' for .'an' .'. injuctidnandfor a " denied·. ' . 'J;' . '.
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(O'tuuit Oourt;: B; D. Net.D York. October 22, 188'7.)
JU;JUSDICTIONAL FAQTS-CODEQIVIL PROC. N.!. 1S89. Unde].' Code Civil Pt:0C. N. Y. § 582, providing that in pleading a ",uligment; it sball ,n:Ot be necessary to' allege thejurisdi'ctionaI facts, but that it ;may be stated was "duly, given or made," an allegation of the, appointment of COmmlsllloners by a judgment made by and entered in" a certaincouJ1 Ie sufficient. '" . ' ,
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At LaW. , Demurrer to, the complaint., ,, ,, ',' " , H,. Lee; HQnry H. Eaton, 'G. E. Stuart,. 'and R 'T.' Barton, piairitiffiij8tiedHEmry S. J. et: cd., lll1eging that ,they Were appointed special commiSsioners by ajudgment duly made hi the circuit Court 'MRichmond, Virginia, and that the defeild'iultS made certain bonds to'them. Defendant Terbell demurred, at-