
    257 F. 930
    CASCADEN v. O’CONNOR.
    No. 3227.
    Circuit Court of Appeals, Ninth Circuit.
    May 5, 1919.
    
      Morton E. Stevens, of Fairbanks, Alaska, and Thomas R. White, of San Francisco, Cal., for appellant.
    
      Leroy Tozier and McGowan & Clark, all of Fairbanks, Alaska (De Journel & De Journel, of San Francisco, Cal., of counsel), for appellee.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

The appellant points to the language of the opinion of the court below, in which it was said that the facts set forth in the complaint were proved “by a fair preponderance of the evidence,” and invokes the rule that, in order to establish a constructive trust by parol evidence as against the holder of the legal title, the proof must be clear, definite, unequivocal, and satisfactory. 39 Cyc. 192. We think it should not be held that the expression quoted from the opinion of the trial court indicated that the proof was not of that satisfactory and convincing kind required to sustain a decree in such a case as this. This is not a case in which the legal title stood in the name of the defendant at the time of the initiation of the plaintiff’s rights. Here, according to the. evidence, the appellant and the appellee started out on a joint venture, traveled and camped together, and, as the court below found, together located and staked the claim in the name of both. There was testimony, which the trial court credited, that they made an agreement, upon which the appellee relied, that the appellant was to complete the location for their joint benefit. Each thereafter made discovery on the claim, but before discovery the appellant, unknown to the appellee, had erased the appellee’s name from the claim and substituted the name of another. The rights of the appellee here do not rest alone upon evidence of a parol agreement with the appellant. They rest also upon proof of the joint acts of the 'parties, whereby the original rights were acquired. As to those acts the testimony of the parties is in direct conflict. The court below rejected that of the appellant and credited that of the appellee. We have no warrant for saying that the court did not find the evidence “clear,” “definite,” and “unequivocal,” and it is clear that the court found it “satisfactory.” In Schwartz v. Gerhardt, 44 Or. 425, 75 P. 698, the court said that the evidence to establish a constructive trust must be clear and cogent, and such as to satisfy the mind fully. In the present case the court in the opinion said: “To believe-the testimony of the plaintiff is to believe what is reasonable, logical, and probable. It is consistent with what the average prospectors would do under the same circumstances. The plaintiff is also entitled to that full measure of consideration which, since the establishment of courts, has been accorded to the witness who, by his demeanor and manner of giving his testimony, convinces the court of the truthfulness of his statements.”

The appellant contends that, inasmuch as the location made on November 30, 1914, was unaccompanied by discovery, and the possession was abandoned by the locators, he had the right thereafter to enter upon the ground, and make a new location, and change the name of one of the locators, and that, in any view of the case, the most that a court of equity could award to the appellee would be the one-fourth interest which inured to the appellant by the substitution of Bell’s name for O’Connor’s, in accordance with the appellant’s general agreement with Bell, by which they were to share equally in all locations made in the name of either. This contention ignores the essential facts upon which the appellant’s rights are founded. The appellant and the appellee, as we have found, were engaged in a joint venture, and a fiduciary relation existed between them. The appellant, according to the appellee’s testimony, and as the court below found, had agreed to look after the interests of the appellee in this particular mining claim. When the appellant made discovery on the claim, it resulted in validating the location for the benefit of both locators. If the appellant caused the alienation of a one-fourth interest in the claim to an innocent purchaser, so that the same may not be recovered, it must be held that he thereby deprived himself, and not the appellee, of a one-fourth interest, and that the- appellee was entitled to an undivided one-half interest in the claim, he not having parted with any portion of his interest, and not having been a party to the transaction by which a one-fourth interest was conveyed away.

Other assignments of error present the rulings of the court below on the admission and exclusion of evidence, and refusal to find as requested by the appellant. We find no error in any of them. It is not necessary to review them, for the reason that the court below found on the conflicting testimony that the appellant wrongfully erased the appellee’s name as one of the locators and substituted the name of Bell. On that question of fact the whole merits of the controversy rested. It was a question of veracity. The court believed the appellee and his witnesses, and the conclusion reached could not have been affected by any different rulings on the admissibility of evidence. Mining Co. v. Taylor, 100 U.S. 37, 25 L.Ed. 541; Engelstad v. Dufresne, 116 F. 582, 54 C.C.A. 38.

We find no error. The decree is affirmed.  