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land was put into the name of his nephew tracted for Cravens and remunerating himEd. T. Taylor for convenience, but that he self for his services; and that the position of owned it while it was in his nephew's name, Cravens in relation to the property, as well and still owned it; and that any statement as in relation to this suit, was that of a figto the contrary was not according to the urehead. The court found that the conveyfact. The evidence further discloses that ance from Cravens to Reed was made for the prime mover in this litigation was Taylor, the purpose of paying the expenses of the and not Cravens. Taylor sent a telegraphic litigation attending the application for patmessage to Cravens, who was at Enid, in ent and the expenses of Cravens in the próseOklahoma territory, that a suit was neces- cution against him for murder. We think sary to protect creditors; and instructed him that the evidence supports the finding, and to telegraph back to A. S. Blake, at Denver, that the scheme of deeding the property to "Enjoin sale of my ranch at once," which the land and improvement company, and Cravens accordingly did. Cravens never using its stock, was only one of the methods saw the papers in the case until he came to considered for effectuating the purposes of attend the trial. Taylor signed the name of the conveyance to Reed. That method was Cravens to the injunction bond without any not adopted, but the trust deeds to Lee and direct authority to do so, and Cravens, when Fesler were in line with the apparent genhe learned the fact, acquiesced. A tempo- eral purpose for which Reed held the title; rary injunction was granted in the cause on and, in view of the facts and conditions disthe affidavit of Taylor. The First National closed by the evidence, we cannot say that Bank of Glenwood Springs paid Cravens' ex- these deeds, made by Taylor's direction, were penses from Oklahoma to Denver to attend in excess of Reed's authority, especially at the trial. Cravens was in Colorado when the instance of persons who, as we shall see Reed made the trust deed to Lee, and also hereafter, were not proper parties to the suit. when the deed from Reed to Ed. T. Taylor The other question is the one most elaboand that from Ed. T. Taylor to Joseph W. rately argued, and it is, perhaps, not entirely Taylor were executed; and, although he tes- free from difficulty. There is no question of tified that he knew nothing of them until the estoppel in the case. Reynolds was never trial, yet, when his attention was called to held out as a partner with Taylor. No perthem, he expressed no disapproval of the son ever dealt with Taylor on the supposiacts of Taylor in directing them. He saw tion that Reynolds was his partner, or, so Taylor frequently during the time of all far as appears, with any knowledge or susthese transactions, but made no inquiries, picion that any relation of any kind existed and paid no attention to what was being between them. The question therefore is, done. He paid no taxes on the property, and were they partners as between themselves? made no arrangements for the taxes. Be- If they were, they were partners as to all fore Reed's conveyance to Ed. T. Taylor, Jo- the world. If they were not, they cannot seph W. Taylor had the land platted into be held as such by third persons, wuo were town lots, and told Cravens he was going to not misled by an appearance of partnership. sell them, and the latter made no objection. Beecher v. Bush, 45 Mich. 188, 7 N. W. 785; Cravens, on being asked who was going to Refining Co. v. Rucker, 6 Colo. App. 334, 40 make the deeds to the lots when they were Pac. S53. The sole evidence upon which resold, replied that he did not know, but sup- liance is placed to establish a partnership posed they would be made by Reed because is the following contract: "This agreement, he had the title. Cravens testified that he made and entered into this 22d day of Augave the deed to Reed to see that the debts gust, A. D. 1889, by and between Joseph were paid; and Taylor's testimony was that Reynolds, of Chicago, Illinois, and Joseph if the land had been sold before the note be- W. Taylor, of Leadville, Colorado, witnesscame due, for enough to pay off all, Cravens eth: That whereas, some time ago said Tay. would probably never have known anything lor was, employed by one E. B. Cravens to about it; that the only interest Cravens aid him in securing title to lots Nos. 2, 3, 4, would have in the property, if he should re- 5, in Sec. 9, Tp. 6 S., R. 89 west, in Garfield gain it, would be to see that it was devoted county, Colorado; and whereas, said Crato the payment of the debts. Taylor, at dif

was without funds, and said Taylor ferent times, paid Cravens money on account was compelled to advance and loan to said of the land, the payments aggregating a con- Cravens the money necessary to improve siderable sum; and finally furnished him the land, and to pay the expenses of the litimoney to go to Oklahoma, where he intended gation attendant thereon, as well as other to remain. He made the trip from Oklahoma expenses of said Cravens; and whereas, said to Denver in obedience to Taylor. Taking Reynolds has aided said Taylor in the matall the evidence together, not excluding the ter, and has loaned him large amounts of declaration of trust itself, its effect is that money to aid in paying such expenses; and from the time when Cravens confessed the whereas, the amounts advanced and loaned judgment in Taylor's favor, down to the to said Cravens have been much greater commencement of this litigation, Taylor had than originally anticipated, so much so that full control of the property, for the purpose the parties hereto deem it equitable and just of discharging the debts which were con- to cancel all prior agreements with refer:

vens

ence to the matter, and to make this agree. out of his employment, in consideration of ment in lieu of all past agreements: It is the money he had obtained from Reynolds, therefore agreed by and between the parties and of some additional money to be paid by hereto that they are and shall be equally the latter if the enterprise should have a interested in all that is made out of the ven- successful issue. We do not think it proves ture, and that when the litigation is finally a partnership. There are important elesettled said Reynolds is to have one-half ments of a partnership which are not conof everything that is realized, and in case tained in it. Reynolds was to have an equal the title to said land, or any portion there. interest with Taylor in something to be realof, is secured, then one-half of said land; ized. Probably this something may be calleach party on a final accounting to be re- ed "profit”; but participation in profit, or sponsible for an equal proportion of the ex- even in profit and loss, does not of necessity penses and moneys loaned and used in the constitute a partnership. One of the essenpiemises, provided the venture is a success, tial elements of a partnership is a combut unless it is Reynolds is not to be re- munity of interest in its subject matter. In sponsible for any other or further sum than the management of the common business he has already advanced. And whereas, each partner is a principal as to the partsaid Taylor contracted with the D. & R. nership and an agent as to the other partG. R. and with the Colo. M. R. R. Co., ners, He has the right "to make contracts, amounting in the aggregate to about $25,000, incur liabilities, manage the whole business, to be paid as soon as Cravens obtains title and dispose of the whole property of the to said land, it is agreed that said Reynolds partnership, for its purposes, in the same and Taylor shall be and are equally interest- manner and with the same power as all the ed in those contracts. And whereas, said partners could when acting together.” The Taylor has a judgment against said Cravens authority of the several partners is a neces: in the district court of Pitkin county, Colo- sary sequence of their community of interrado, which is a lien on said land, it is est, and there is no partnership without it. agreed that said Reynolds and Taylor are Dwinel V. Stone, 30 Me. 381; Beecher V. and shall be equally interested in said judg- Bush, supra; Lord Cranworth, in Cox v. ment. Witness our hands and seals the day Hickman, 8 H. L. Cas. 306; Mollwo v. Court and year first above written. [Signed in of Wards, L. R. 4 P. C. 419; Eastman v. duplicate] Joseph Reynolds. [Seal.] Joseph Clark, 53 N. H. 276. This contract provides W. Taylor. [Seal.]”

for no community of interest in the business It appears from the recitals in this con- which Taylor was conducting. The interest tract that Taylor had been employed by of Reynolds was confined to what might Cravens to aid him in securing title to the finally be realized by Taylor from the busiland in question; that Cravens had no mon- ness. In the meantime Reynolds would save ey with which to do the necessary work and no control of it, and could make no outside pay the necessary expenses; that Taylor contract in relation to it which would be had advanced him funds for the purpose, binding on Taylor. It was only after the and that Reynolds had loaned Taylor money

business should be finally concluded by Tayto enable him to make the advances. For lor that the interest of Reynolds would atthe money loaned by Reynolds he was to have tach, and it would then attach only to the an equal interest with Taylor in what the product of the business, and must be aclatter should be able to make out of the counted for to Reynolds by Taylor. In "venture," and the same interest in some everything pertaining to the management other matters. As to what the “venture" and conduct of the business, Reynolds lackwas, or what was expected to be realized ed the power of a partner, and, as this powfrom it, or how it was to be realized, the er is essential to a partnership relation, its contract is not very lucid; but Taylor was

absence involves the absence of the relation. employed by Cravens to give him assistance Another incident of a partnership is the in procuring title to a tract of land, and it sharing of losses by the partners. The partis safe to assume that by the terms of the nership contract may say nothing about losses, employment Cravens was to recompense him but the right to participate in profits implies in some way.

What he would receive in a corresponding liability for losses; and it has consideration of the assistance or services accordingly been held that an agreement for he might render would be what would be the division of profits is admissible in evimade out of the venture. This would belong dence tending to show a partnership. to Taylor. Taylor's employment involved Where, however, an agreement between two the expenditure of money by him, and he or more persons, in relation to the prosecuwas compelled to procure a portion of it tion of an enterprise, provides that one of from outside sources. He obtained loans their number shall incur no risk, and be charfrom Reynolds, and these loans were the oc- geable with no loss, the agreement is not casion of the contract between the two. one of partnership. Ruddick v. Otis, 33 Iowa, Now it seems to us that the instrument is, | 402; Scott v. Campbell, 30 Ala. 728; Pattison in effect, so far as the venture is concerned, v. Blanchard, 5 N. Y. 186; Hazard v. Ilazard, 1 nothing more than an assignment by Tay- Story, 371, Fed. Cas. No. 6,279; Vanderburgh lor of one-half of what he expected to make v. Hull, 20 Wend. 70. Now, it seems to be

as

quite clear from this contract that there was der instruction from the administrator, was to be no liability for losses against Reynolds. about to cause the property to be advertised He was to be responsible upon a final account- for sale, and Taylor was endeavoring to proing for an equal proportion of the expenses, cure a postponement of the proceeding, a conprovided the venture should be successful, versation took place between himself and but otherwise nothing was chargeable against Taylor, in which Taylor said that there was a him. If the venture was successful, there very serious question whether the Reynolds would be a profit over expenses already paid estate was not liable for the debts contracted and to be paid; there would be no loss. But in getting the title; that the agreement beif the venture should be a failure, and result tween himself and Reynolds came very near in actual loss, Reynolds would sustain none making Reynolds his partner; and that just as of it, except to the extent of the advance good lawyers as Thomas had passed upon the ments he had already made. As some essen- contract, and thought that it came very near tial elements of a partnership are lacking, we being a partnership. This conversation was are unable to deduce that relation from the not denied by Taylor, and his expressions are contract. The contract alone does not prove as significant for what they do not, as for a partnership, and we think we might safely what they do, contain. They contain the first go even further, and say that it is incon- mention of a partnership that we find in the sistent with a partnership.

record. In all the negotiations between TayBut if we should concede for the present lor and Thomas and Taylor and the administhat an intention to form a partnership is not trator, for the settlement of the claim of the inconsistent with the language of the instru- estate against Taylor, there was no suggesment, then, as that language is entirely con- tion of partnership; and when at last the sugsistent also with an opposite intention, we gestion came, it was not a suggestion of acmust go outside to find what the real inten- tual partnership. Taylor did not say that tion was. Parol evidence is inadmissible to there was any understanding between himself vary the terms of the contract, but, if they and Reynolds that they should be partners, or are equally susceptible of two different con- that the agreement between them was made structions, surrounding circumstances, and for the purpose of creating a partnership, as the acts and even declarations of the parties, he surely would have done if such had been may be considered, not to change the terms, the fact. He based his claim of partnersbip but to find what meaning the contracting par- entirely upon a construction which himself and ties intended to convey by them, and discover other lawyers were disposed to place upon the which of the constructions the parties them- contract; and his suggestions were cautiousselves placed upon the language used; and ly worded, and would indicate that he was this, without violating any rule of evidence. not sure of his footing, even on the question Whart. Ev. $$ 939, 940; 1 Greenl. Ev. 88 277, of construction. His prior silence on the sub288; McPhee v. Young, 13 Colo. 80, 21 Pac. | ject, the language in which he brought for1014. Reynolds died a year and a half after ward his claim, and the ground on which he making the contract, and there is no evidence based it, all indicate that a partnership was at all from which it can be gathered how he never intended by himself or Reynolds; but regarded it. There is, however, some evidence that, in seeking an avenue of escape from the from which the views of Taylor on the sub- | complications with which he was beset, he ject may be inferred. December 27, 1892, is grasped at the idea, whether it originated the date of one of his contracts with Cravens. with himself or was suggested by others, that This contract was executed after Taylor made a partnership might be inferred from the conhis note to Thomas. The purpose of the con- tract, and the trust deed to Lee thus rendertract was to provide for the payment of the ed unavailing for the purposes for which it debts by Taylor out of the land; and Taylor, was given. among other enumerated claims, agreed “to We are therefore remitted back to the conpay C. S. Thomas the amount due the estate tract as the sole evidence of the partnership; of Joseph Reynolds, for $15,500, with inter- but the contract is not evidence of a partnerest." When Taylor made that contract it ship, and we must hold that there was none. seems not to have occurred to him that Reyn- | No rights were involved in the contract exolds was his partner. If he had understood cept those of the contracting parties. Third that Reynolds was his partner, and that the persons were not concerned in it, and the submoney which Reynolds had advanced was in- sequent disposition of it by Taylor and the vested in a partnership business, he surely representatives of Reynolds cannot be called would not have recognized the advancements in question. The title to the land had been as an indebtedness to the estate of Reynolds. obtained, and was controlled, if not owned, by That he treated the amount as a debt to the Taylor. The administrator was clamoring for estate, put it in the same category with the a settlement, and an attempt at adjustment on other debts, and made provision for its pay. the basis of the contract failed. The parties ment, would seem to be inconsistent with any then agreed to abandon the contract, and supposition of Taylor at the time that himself make provision for the repayment of the monand Reynolds were partners. Mr. Thomas ey Reynolds had loaned, which they had a testified that after the maturity of the note perfect right to do. The result was the trust from Taylor to Thomas, when the latter, un- , deed and note in question. This deed, being prior in time to that held by the bank, must walks with box gutters, and by macadamizbe satisfied first out of the land. If, upon a ing the roadway the full width. The validsale, more is realized than is sufficient for that ity of the proceeding is challenged by the purpose, the surplus must be applied on the plaintiff, an owner of abutting property, on indebtedness to the bank as far as it will go, the grounds (1) that, as a matter of fact, the not, however, beyond payment of the amount street was not unsafe and dangerous, within due. Should there still be a residue, it will go the meaning of the charter, at the time the to Taylor. There being no partnership, the improvement was ordered; and (2) that, if unsecured creditors must rely upon the indi- it was, the council could only make such imvidual responsibility of the person with whom provement at the expense of the property they contracted, and their remedy is at law. owners as was necessary to render it safe. Their claims are not of equitable cognizance, After the issues were made up, the suit was and cannot be adjudicated in this proceeding. referred to Judge Thayer, who reported that They have no standing in this case, and the street was not unsafe and dangerous to should be dismissed out of it. The conclusion persons or teams, and therefore it could not of the trial court that there was a partnership be improved at the expense of abutting propbetween Taylor and Reynolds was erroneous, erty without a petition. His report was conand all its findings, based on that conclusion, firmed by the trial court, and the city appeals. were therefore also erroneous. When the The decree is clearly right. The power of case was brought into this court, the trustee a city council in the matter of street improvefor the estate was about to sell the land, and ments is a specially delegated authority, and we granted an injunction restraining the sale. its acts are legal only when in strict conThat injunction will now be dissolved, and formity with the authority conferred. By its the cause remanded, with instructions to the charter (Laws 1891, p. 823 et seq.), the city of district court that, in any further proceedings Portland has power and is authorized to imwhich may be had in the case, the lines indi- prove any street or part thereof within the cated in this opinion shall be followed. Re- corporate limits (section 94); but no such imversed.

provement can be undertaken or made without 10 days' notice thereof being first given

by publication in some daily newspaper pub(30 Or. 351)

lished in the city, and no such notice shall be SMITH V. MINTO. .

given unless the owners of one-half of the (Supreme Court of Oregon, March 16, 1897.)

property affected by such improvement shall STREET IMPROVEMENTS-VALIDITY-ESTOPPEL. petition for the same (section 95). By section 1. Where a city charter authorizes the im

120 it is provided, however, that the proceedprovement of a street only oli petition of adjoining owners, uniess the street is unsafe,

ings for the improvement of a street, or part the question of safety is a jurisdictional one, thereof, may be taken without giving the on which the findings of the council are not notice required by section 95, whenever the conclusive. 2. Nonobjection of a lot owner to the improve

owner or owners of two-thirds of the adjament of a street while in progress will not es

cent property shall, in writing, petition the top him from resisting payment of an assess- council therefor; and, whenever any street ment therefor, if the proceedings are void ab or part thereof shall be in such condition as initio for want of jurisdiction.

to be unsafe or dangerous to persons or Appeal from circuit court, Multnomah coun. teams passing on, along, or over the same, ty; Loyal B. Stearns, Judge.

the council may declare that fact by resoluSuit by Milton W. Smith against John W. tion, and thereupon cause the improvement Minto, chief of police of the city of Portland, of such street to be made without any petito restrain the collection of a special assess- tion therefor. From these provisions of the ment. From a decree for plaintiff, defend- charter, it is apparent that the power of the ant appeals. Affirmed.

city to improve a street depends upon the W. M. Cake and R. R. Giltner, for appel- assent or petition of a given number of proplant. W. S. Perry, for respondent.

erty owners, unless it is in fact unsafe and

dangerous to teams passing on, along, or over BEAN, J. This suit was brought by the the same, in which case no petition is necesplaintiff, for himself and all others similarly sary. It is not claimed that the improvesituated who might become parties thereto, ment in question was made upon the petito restrain the collection of an assessment tion of the property owners, and therefore for graudling and improving Multnomah street, the power of the council to proceed in the between the north line of Grover and the matter depended upon the fact of the street south line of Curry streets, in the city of being unsafe and dangerous to persons and Portland. The facts are that on November teams, within the meaning of the latter 18, 1891, the common council, by resolution, clause of section 120 at the time the improvedeclared the portion of Multnomah street re- ment was ordered. This is a jurisdictional ferred to, to be unsafe and dangerous to per- matter, and the findings thereon of the city sons and teams, and thereupon, without any council are not conclusive upon the question. petition from the property owners, proceeded 2 Dill. Nun. Corp. (4th Ed.) $ 800. Unless to improve it, at the expense of abutting the street was, in fact, in such a condition, property, by grading, laying sidewalks, cross- the city was without power or jurisdiction in tlie premises, and its proceedings are void. Action by John Weaver against Southern The referee found that there was nothing in Oregon Company. From a judgment in fathe condition of the street to render it unsafe vor of plaintiff, defendant appeals. Affirmed. or dangerous, and this finding is abundantly

This action was commenced in October, sustained by the testimony. The evidence

1894, to recover for the use and occupation shows that it was an ordinary level dirt street,

by the defendant of certain premises belongwhich had become almost, if not quite, im

ing to the plaintiff. The complaint contains passable for heavily loaded teams, on ac

two causes of action, in the first of which it count of the traffic thereon during the rainy

is, in substance, alleged: That on the 24th. season, but it was in no sense unsafe or dan

day of July, 1882, by a certain agreement or gerous for either persons or teams. It was

lease in writing, a copy of which is annexed probably in no worse condition than any oth

to and made part of the complaint, the plainer dirt street in the city would have been if

tiff demised to one H. H. Luse a right of subjected to the same amount and character

way for a logging tramway or railroad over of travel during the winter season, nor were

certain premises belonging to him for the persons and teams traveling thereon exposed

term of 10 years at an annual rental of to any more or greater danger than they

$125, payable at the end of each year. That would be in making a like use of any road,

on or about the 14th day of December, 1887, street, or driveway which, by rain and con

all the rights of Luse under the lease became stant use, had become excessively muddy.

vested in the defendant, as his successor in But such a condition of a street is not sufi

interest, and it then and there, with the concient to authorize its improvement at the ex

sent of plaintiff, “entered into possession of pense of adjoining property without the peti

said demised premises, and, with consent of cion required by the charter. The general

plaintiff', continued in possession of said rule prescribed by that instrument is that

premises during the full period of said lease; no such improvement shall be made except

and, since the expiration of the 10-years term upon the request of the owners of at least

described and provided for in said lease, deone-half of the property affected thereby;

fendant, with consent of plaintiff, has conand the latter clause of section 120 is merely

tinued in the possession of said premises, an exception to this rule, and applicable only and, with consent of plaintiff, still continues to cases where the insecurity or danger to

in possession thereof, and still continues to persons or teams from the condition of the

use and occupy the same for its logging railstreet is such as to require attention on the part of the council to prevent serious injury ing said time that defendant was so possess

road, and for its logging purposes; and duror casualty.

ed of said demised premises it continued to We conclude, therefore, that Multnomah

pay said yearly rental of $125 per year up street was not in such condition as to author

to the 31st day of December, 1892. That ize the proceedings in question upon the part

since said 31st day of December, 1892, deof the common council, in the absence of a

fendant refuses to pay any rent for the petition from the abutting property holders.

use of said premises, and there is now due Vor is there any room in this case for an

and owing plaintiff from defendant on said application of the doctrine of estoppel, on the

agreement of lease, and for the use and ocground that the plaintiff made no objection

cupation of said premises for said right of to the improvement while it was in progress,

way, the sum of $125 for the year's rent combecause the council was without jurisdiction from the very beginning, and in such case

mencing January 1, 1893, and ending Decem

ber 31, 1893, and interest on said sum of $125 the doctrine does not apply. Strout v. City

at the rate of 8 per cent. per annum since of Portland, 26 Or. 294, 38 Pac. 126. The

said 31st day of December, 1893, and dedecree of the court below is therefore af

fendant has not paid the same, nor any part firmed.

thereof." As a further and separate cause of

action it is alleged, in substance: That Gi Or. 14)

on July 12, 1890, the plaintiff sold, and by WEAVER v. SOUTHERN OREGON CO. deed conveyed, to the defendant all the tim(Supreme Court of Oregon. March 16, 1897.)

ber, except red cedar, standing, lying, or USE AND OCCUPATION-Deeds.

being on certain described real property be1. Where defendant occupied the premises

longing to him, together with the right and of plaintiff by his consent, as successor in in- privilege of entering upon said real property, terest to a lessee, and during the term or the and making such roads and ways thereon as lease paid rent at the rate therein stipulated, and thereafter by consent of plaintiff occupied

it might deem suitable and convenient for as tenant, plaintiff could recover for such sub

the removal of such timber, at any time sequent use and occupation.

within three years; and stipulated therein 2. Where a deed of standing timber, granting

that, in case the defendant should fail to a right of cutting and removal for three years, and stipulating that the grantee might have

complete the removal thereof within the time additional time by paying rent, was accepted specified, it should have such additional time by the grantee, the grantor could recover such as it might desire in which to do so by payrent, though the grantee did not sign the deed.

ing at the rate of $100 per year therefor. Appeal from circuit court, Coos county; J. That defendant accepted said deed, and C. Fullerton, Judge.

agreed to comply with its stipulations and

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