
    123 F. 238
    ROBERTS et al. v. DATE et al.
    No. 872.
    Circuit Court of Appeals, Ninth Circuit.
    May 25, 1903.
    
      Winn & Shackleford, L. M. Hoefler, and Wm. Rix, for appellants.
    T. J. Donohoe, T. R. Lyons, and Alfred Sutro, for appellees.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The provision of the Code of Alaska in respect to findings in actions “of an equitable nature” is that “in all such actions the court in rendering its decision therein shall set out in writing its findings of fact upon all material issues of fact presented by the pleadings, together with its conclusions of law thereon.” Code Civ.Proc.Alaska, § 372, 31 Stat. 395, c. 786; Carter’s Annotated Codes, p. 226.

No exception was taken in the court below to the form or sufficiency of the findings, and, while it may be conceded that they do not fully meet the requirements of the statute, enough is found therein to enable this court to dispose of the appeal upon its merits, in the view which we take of the nature of the contract made between the parties on February 1, 1900. It clearly appears from the record that the trial court found upon the evidence that the agreement was not modified by a subsequent oral agreement, as alleged in the complaint. From an examination of the testimony, we find no ground for saying that the court was not justified in reaching that conclusion.

We come, therefore, to the consideration of the question whether, by the terms of the written agreement, any form of partnership was created, or the appellants were entitled to any kind of relief, as to the property in controversy in this suit. It reads as follows: “This agreement entered into this 1st day of February, 1900, by and between J. P. Roberts, W. E. Finn, and A. F. Jilson, parties of the first part, and Fred J. Date, party of the second part, for and in consideration of all necessary expenses in developing mines in Alaska for the year 1900, furnished by said parties of the first part, said party of the second part hereby agrees, and by these presents does agree, to assign, transfer, and deliver to said parties of the first part an undivided one-half interest in all properties he possesses in the territory of Alaska. Furthermore, said parties of the first part agree to furnish Mrs. Fred J. Date, wife of the party of the second part, the sum of one hundred dollars in cash, and necessary provisions for the year 1900.”

This agreement, standing by itself and unaided by evidence in explanation of its terms, is clearly an agreement of bargain and sale. By its terms Date agreed with Robers, Finn, and Jilson that in consideration of money and supplies to be furnished to his wife, and all supplies and expenses necessary for his outfit in developing mines in Alaska for the year 1900, he would transfer to them a half interest in the mines that he then possessed in Alaska. It is not a partnership agreement nor a grub-stake contract. It does not require Date to do any work in developing the mines which he then possessed and of which he contracted to transfer a half interest, nor does he covenant to do so. It does not require him to do development work at all. It binds him to do nothing but to transfer the stipulated interest in the mines he then had. The reference to the development of mines is only for the purpose of defining the extent of the consideration which the other parties were to pay him. It is the same as if Date had figured up in dollars and cents the amount of expenses for himself and his wife which he found it necessary to incur for the mining season of 1900, in whatever work he might engage, and expressed it in a definite sum as the consideration for his transfer. This we think is the plain meaning of the agreement, and its interpretation requires no aid from the surrounding circumstances. Its only uncertainty is the quantum of the supplies that were to be furnished to Date, but this does not concern us on the appeal, for the reason that the supplies have all been furnished, and thereby the stipulated consideration has been paid. But if, indeed, the contract is to be interpreted in the light of the antecedent negotiations and the acts of the parties, it appears, without dispute, that the first proposition was an offer to Roberts from Date to sell a half interest in this property “for a year’s provisions” for himself and wife. It is shown, also, that after the execution of the agreement Finn, Jilson, and Date went together from Seattle to Valdes, and thence started out to the mines which had been located by Date, and which were some 200 miles in the interior, taking with them an outfit of provisions for the mining season, and that it was understood that Finn and Jilson were to go to the mines and do one-half of the annual assessment work on the same for the year 1900. Date testified — and it is not contradicted by any witness— that each of ,the three, in so setting out. separately owned one-third of the provisions which they carried. He alleged in his answer and he testified that it was expressly understood that the other parties to the agreement were to have no interest in anything that he should stake. No witness denied that this was true, and the reply of the appellant did not controvert it. A part of the provisions which they expected to use was a certain amount cached the year before at Amez Rapids, which Date had in August, 1899, contracted to buy from the owner for $100. It was agreed that Roberts was to pay for this cache, and that Date was to have one half thereof-, and Finn and Jilson the other half. They started out from Valdes about the 20th or 25th of March. Very soon afterwards Jilson abandoned the enterprise, and took out his one-third of the provisions. Finn and Date proceeded to the neighborhood of the mines which had been located by the latter, and about April 15th spent one day in prospecting the same. About the last of April Finn separated from Date and went his way, taking with him his one-third of the provisions, leaving Date with his one-third, which he testified was his own individual property, and his testimony in this respect was not contradicted by Roberts or by any one. Date went upon his claims, worked two days thereon, shoveled and panned and made some little trenches, and thereafter daily prospected the same until about the middle of May. He sent word to Roberts that Finn and Jilson had abandoned the enterprise, and requested Roberts to send some one in to do his share of the assessment work on the claims. About the 1st of July, Date abandoned his camp near the location of his claims, and went elsewhere, and made the discoveries and locations which are the subject of the present controversy. In the light of the surrounding circumstances and the acts of the parties, therefore, it is clear that the provisions which Date received and the money furnished him and his wife were the consideration of his transfer of an interest in his mines, and that, while there was a tenancy in common of the mines, there was no partnership and no partnership property, and no partnership enterprise was contemplated.

Such being the purport of the agreement, it becomes unnecessary to consider the other questions in the case. The decree is affirmed.

ROSS, Circuit Judge.

I concur in the judgment on the ground that the written contract of February 1, 1900, is too ambiguous, and the oral testimony too contradictory and uncertain, to justify a decree in favor of the appellants.  