livering said stock to any person or persons, Toping, and also restraining the defendant company or companies, until the final deter- Goldfield Consolidated Mines Company from mination of this action; but that, notwith- transferring any part of said 30,000 shares of standing such injunction, the defendant Gold- the capital stock of said company, for which field Consolidated Mines Company did, at certificates were issued in the name of M. the request of the defendant Botsford, issue Toping, or from doing any other act that to and in the name of John S. Cook as trus- would render ineffectual any judgment that tee certificates representing said 45,000 shares may be rendered in this action. At or about of the capital stock of said company. Dur- the time the plaintiffs and the defendant ing the time said certificates were issued and Botsford secured an option upon the stock of held by said John S. Cook as trustee, divi- the Combination Mines Company, an agreedends amounting to the sum of $9,000 were ment was made and entered into by and bedeclared upon said 45,000 shares of stock, tween the defendant Botsford and C. J. and that all of said sum of $9,000 was paid Moore wherein and whereby it was agreed to and received by the defendant Botsford, that the said Moore, in consideration of servand by him appropriated to his own use, ices rendered or to be rendered by him in and and that no part thereof was paid to the about the premises, should receive a share plaintiffs, or either of them. On or about of whatever profits the defendant Botsford the 5th day of December, 1907, the injunc- might make out of said proposed merger, but tion heretofore issued in this action was by this agreement was thereafter modified by order of the lower court dissolved, and im- said parties, and, in lieu of an interest in mediately thereafter the certificates repre- the profits, said Moore was paid the sum of senting the said 45,000 shares of the capital | $25,000 in cash, and said sum of $25,000 was stock of the Goldfield Consolidated Mines accepted by said Moore in full payment of Company which had been issued to, and in the name of John S. Cook, as trustee, were indorsed by him and delivered to the defendant Botsford, and thereafter the defendant Botsford surrendered said certificates to the defendant Goldfield Consolidated Mines Company, and caused new certificates in lieu thereof to be issued as follows, to wit: A certificate or certificates representing 2,000 shares thereof in the name of George S. Nixon and a certificate or certificates representing 43,000 shares thereof in the name of M. Toping. That no consideration whatever was paid by said M. Toping or received by the defendant Botsford for the certificates so issued in the name of M. Toping, and no part of said stock was ever delivered to the said M. Toping, but the certificates representing all of said 43,000 shares of stock were delivered to the defendant Botsford, and said certificates were issued in the name of M. Toping at the request of the said defendant Botsford, and to subserve his own purposes, and the defendant Botsford thereafter procured and caused the said M. Toping to indorse the same, and the defendant Botsford has at all the times since the issuance of said certificates had the same in his possession and under his control. That certificates representing 30,000 shares of the capital stock of the Goldfield Consolidated Mines Company so issued in the name of M. Toping, and delivered to the defendant Botsford, still remain in the possession and under the control of said defendant Botsford. During the trial of the above-entitled cause in the lower court and on or about the 29th day of January, 1908, an injunction was issued out of said court, restraining the defendant Botsford from transferring or in any manner disposing of 30,000 shares of the capital stock of the Goldfield Consolidated It is strenuously argued by the able and Mines Company so held by him for which eloquent counsel who represent the appellant

any and all services rendered or performed by him in the premises, and in satisfaction of any claim that he might have to an interest in said profits under the terms. of the agreement made and entered into with him as aforesaid. That the defendant Botsford did not expend any moneys of his own in the securing of said option or in the effecting of said merger, but that all moneys necessary for that purpose were secured from other parties, and that said parties were repaid and compensated for the moneys advanced by them out of the 100,000 shares of the capital stock of the Goldfield Consolidated Mines Company, which was received as a gross profit, commission, and compensation for the securing and assignment of said option. That the plaintiffs have fully performed each and all of the terms, covenants, and conditions of said agreement to be by them kept and performed, and they have during all of the negotiations which resulted in the securing of said option and the effecting of said merger furnished the defendant Botsford with such information and money and have performed such services as were required of them. That the agreement made and entered into between the defendant Botsford and the plaintiffs was acted upon by all of the parties thereto.

On these findings of fact the lower court awarded a judgment to each of the plaintiffs of 15,000 shares of the capital stock of the Goldfield Consolidated Mines Company as their portion of the commission in stock and $6,000 accrued dividends on said 30,000 shares of stock, less one-third each of $25,000 in cash which was paid to Mr. Moore by appellant. From this judgment and order of the lower court denying appellant's motion for a new trial, this appeal is taken.

create a valid contract that could be enforced. In this respect we totally disagree. If the respondents entered into a mutual agreement with appellant, as alleged in the complaint, to secure the option in question for the purpose of making the deal, and did no more than to make the suggestion by advice and counsel, and pointed out to appellant the status of the properties in controversy and the scheme which led up to the deal, and

tion, and the appellant agreed to do all the other work in consummating the idea and plan of merging the properties into the deal, and agreed with respondents to divide equal

leged in the complaint, never in fact existed, I even if their testimony granted be true, would and from start to finish there was a conspir- not be sufficient consideration on which to acy on the part of the respondents to defraud the appellant out of the two-thirds of the profits of this deal, which he contends was conducted solely by him and without any agreement whatever between the respondents L. C. Van Riper and Joseph Hutchinson and himself, and that they were not in any way interested or concerned. The lower court, in its opinion, in speaking of this conspiracy to deprive Botsford out of a substantial portion of his commission, says: "It is very earnest-placed the appellant in touch with the situaly and eloquently contended in Mr. Botsford's behalf that a conspiracy was entered into by the plaintiffs and Webster Bishop to defraud Botsford of a substantial part of the fruits of his labors. There is absolutely no evi-ly the profits of the deal, this mutual agreedence in this case which would warrant the ment, founded on mutual promise of aid, ascourt, even by the remotest inference, in con- sistance, counsel, and effort, would be a sufcluding that a conspiracy was entered into. ficient consideration to support the contract A conspiracy must be established by clear under the doctrine of joint adventure. 23 and convincing proofs, and not by the tenu- Cyc. p. 454; Alderton v. Williams, 139 Mich. ous inferences or exsufflicate surmises of 296, 102 N. W. 753 (1905); King v. Barnes, 109 counsel, however cunningly awakened or elo- N. Y. 267, 16 N. E. 332; O'Hara v. Harman, quently depicted." A very careful review of 14 App. Div. 167, 43 N. Y. Supp. 556; Boqua the testimony in this case convinces us, also, v. Marshall, 88 Ark. 373, 114 S. W. 714 (1908); that such a conspiracy has not been proven. Gorham v. Heiman, 90 Cal. 346, 27 Pac. 289; Neither do we feel warranted in saying, aft-Jones v. Patrick (C. C.) 140 Fed. 403; Shea er a most thorough examination of the en- v. Nilima, 133 Fed. 209, 66 C. C. A. 263. We tire record, that there is not such sufficient do not wish to be understood, however, from substantial evidence introduced to have war- what we have stated, that we doubt respondranted the lower court in its findings on ents did not do a great deal more than appelwhich it predicated the judgment in this case lant gives them credit for in bringing to a against the appellant. Further, we are of successful termination this mining deal from the opinion that there is such a substantial which the profits of the commission sued upconflict of testimony on all the material on originated. The lower court, in commentpoints and issues raised that we would not ing on this point, very properly says: “Combe justified or authorized to depart from the mon honesty requires that every person who well-established law in this state that, where makes an agreement should effectually live there is a substantial conflict in the testimony up to it, whether the agreement involves a on material issues, this court will not disturb merger of large mining interests or is simply the findings of fact in the lower court. an ordinary transaction, and the mere fact that one of the parties may have contributed more than his quota of talent and energy to the consummation of the deal does not justify him in disavowing his promise, or of refusing to give to his associates what he agreed should be theirs." The law is well established that property purchased or acquired in connection with a joint adventure or profits realized from a joint adventure of the joint property of the parties interested, where one party holds title to the same, that such property is held in law to be the property of his associates, and the party holding the same is holding their proportionate share as trustee for them. 23 Cyc. pp. 455-459; Hayden v. Eagleson, 15 N. Y. St. Rep. 200; Fueschsel v. Bellesheim, 14 N. Y. St. Rep. 610; Richardson v. McLean, 80 Fed. 854, 26 C. C. A. 190; Morris v. Wood (Tenn. Ch. App.) 35 S. W. 1013; Lyles v. Styles, 15 Fed. Cas. p. 1143, No. 8,625; Cunningham v. Davis (Tenn. Ch. App.) 47 S. W. 140; Matthews v. Kerfoot, 64 Ill. App. 571; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035 (1891); Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285;

The main point in this whole controversy is, as we view the case, whether or not such a legal enforceable agreement has been pleaded under the doctrine of joint adventure in the complaint of respondents as to justify the lower court, if such an agreement as pleaded is proven, to have rendered the judgment and decree that it did in behalf of plaintiffs. We are of the opinion that the complaint states a good cause of action under the doctrine of joint adventure, and the findings of fact on which the judgment of the lower court was found are sufficiently broad to maintain that judgment.

Counsel for the appellant contend that no legal agreement is pleaded, in that there is no consideration on the part of respondents sufficiently plead or proven to warrant the court in enforcing the contract alleged in the complaint, even conceding that such an agreement as pleaded was entered into. Counsel seem to be of the impression by reason of the fact that appellant did most of the negotiations and work of putting through the deal that the small part played by respondents,

the respondents performed their part of the contract entered into, and stood ready at all times to further aid, as far as laid in their power, pursuant to their agreement, the consummation of the deal originally agreed upon. That they were not called upon to do so by appellant is not a sufficient reason in law or equity to invalidate their right to share in the profits of the deal, because the appellant saw fit to take the reins and do most or all of the work himself after the original agreement was made and entered into.

Calkins v. Worth, 215 Ill. 78, 74 N. E. 81; | ings of the lower court are to the effect, that Putnam v. Burrill, 62 Me. 44; McCutcheon v. Smith, 173 Pa. 101, 33 Atl. 881; Getty v. Devlin, 54 N. Y. 403; Church v. Odell, 100 Minn. 98, 110 N. W. 346 (1907); Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005 (1904); Hancock v. Tharpe, 129 Ga. 812, 60 S. E. 168 (1908); Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Marston v. Gould, 69 N. Y. 220; Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; Williams v. Love, 2 Head (Tenn.) 80, 73 Am. Dec. 191; King v. Wise, 43 Cal. 628. We further find that the law is well established that the relation between joint adventurers is fiduciary in its character, and the utmost good faith is required of the trustee, to whom the deal or property may be intrusted, and that such trustee will be held strictly to account to his co-adventurers, and that he will not be permitted by reason of the possession of the property or profits, whichever the case may be, to enjoy an unfair advantage, or have any greater rights in the property by reason of the fact that he is in possession of the property or profits as trustee than his co-adventurers are entitled to. The mere fact that he is intrusted with the rights of his co-adventurers imposes upon him the sacred duty of guarding their rights equally with his own, and he is required to account strictly to his co-adventurers, and, if he is recreant to his trust, any rights they may be denied are recoverable. 23 Cyc. p. 455; Cole v. Bacon, 63 Cal. 571; Hambleton v. Rhind, 84 Md. 456, 36 Atl. 597, 40 L. R. A. 216; Seehorn v. Hall, 130 Mo. 257, 32 S. W. 643, 51 Am. St. Rep. 562; Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904; Getty v. Devlin, 54 N. Y. 403; Hollister v. Simonson, 18 App. Div. 73, 45 N. Y. Supp. 426; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Delmonico v. Roudebush (C. C.) 5 Fed. 165; Morris v. Wood (Tenn. Ch. App.) 35 S. W. 1013; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; O'Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Calkins v. Worth, 215 Ill. 78, 74 N. E. 81; King v. Wise, 43 Cal. 628.

Counsel for appellant seem to lay stress on the fact that by reason of the appellant putting up most of the costs in putting through this deal, and the fact that the respondents were financially embarrassed, that this is further proof indicative of the weakness of or lack of the consideration of the agreement sought to be enforced. As before stated, the mere mutual promise of the parties furthering and rendering their aid, advices, and suggestions, if agreed to was sufficient consideration to support the contract under joint adventure; but the law is well established that the furnishing of capital by the parties to a joint adventure is not necessary to the validity of the contract, so long as the original agreement on which the contract was entered into was carried out. Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Van Tine v. Hilands (C. C.) 131 Fed.

The fact that it required large sums of money to carry the deal through, counsel for appellant seem to believe vitiates the consideration of the agreement alleged, for the reason it is admitted respondents were practically penniless. We fail to see any merit in this contention. Appellant himself did not possess the means to carry the transaction through, and, in order to acquire means to do so, appellant bartered away 50,000 shares of the commission which belonged jointly to the parties to the agreement and which was valued at $500,000 for the use of $50,000 in cash from Mr. Davis, and bartered away another 5,000 shares of the commission to result from the deal in consideration of $25,000 cash advanced by Mr. Haskell. Money was not the consideration of the agreement advanced on the part of the respondents, nor is it so pleaded nor contended, but it was the scheme, claimed to have originated in the brain of Hutchinson, and supplemented by advice and aid of Hutchinson and Van Riper, and bringing to the attention of Botsford the possibilities of the deal, which are the very good and sufficient considerations, advanced by respondents, as against the carrying out of the plan of the deal by Botsford, to the exclusion of seeking or accepting less and less aid and advice ex industria from the respondents, as the success of the venture became more apparent and effected. Money advanced by one party to a joint adventure is held to be a loan to the venture, for which the party is entitled to be reimbursed out of the proceeds of the venture; but, by reason of the advancing of such money, it does not entitle the party so advancing to any superior right as against his co-adventurers. 23 Cyc. pp. 457, 458; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Thurston v. Hamblin, 199 Mass. 151, 85 N. E. 82; Stone v. Wright Wire Co., 199 Mass. 306, 85 N. E. 471; Burhans v. Jefferson, 76 Fed. 25, 22 C. C. A. 25; Sanguinett v. Webster, 153 Mo. 343, 54 S. W. 563; Woodward v. Holmes, 67 N. H. 494, 41 Atl. 72; Leamy v. Fisler (N. J. Ch.) 52 Atl. 703; Rankin v. Black, 1 Head (Tenn.) 650; Crenshaw v. Crenshaw, 61 S. W. 366, 22 Kỳ. Law Rep. 1782; Williams v. Love, 2 Head (Tenn.) 80, 73 Am. Dec. 191; Gee v. Gee, 2 Sneed (Tenn.) 395; Withers v. Pemberton, 3

Y. 267, 16 N. E. 332; Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y. Supp. 13; Marston v. Gould, 69 N. Y. 220; Kirkwood v. Smith, 47 Misc. Rep. 301, 95 N. Y. Supp. 926-929; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035 (1891); Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904 (1894); Humburg v. Lotz, 4 Cal. App. 438, SS Pac. 510 (1906); Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 11 L. R. A. 149; Corbin v. Holmes, 154 Fed. 593, 83 C. C. A. 367; McMullen v. Hoffman (C. C.) 75 Fed. 547. One party to a joint adventure may set off against the demand of another amounts advanced by him toward the venture or payments made by him in behalf of the plaintiffs; and in this respect the court was justified in so deducting the amount expended by the appellant in behalf of Moore from the judgment given in favor of respondents. 23 Cyc. p. 461; Armstrong v. Henderson, 99 Va. 234, 37 S. E. 839; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714.

Lea (Tenn.) 121; Finlay v. Stewart, 56 Pa. | C.) 131 Fed. 124; Edson v. Gates, 44 Mich. 183; Stover v. Flack, 30 N. Y. 64; Doane 253, 6 N. W. 645; King v. Barnes, 109 N. v. Adams, 15 La. Ann. 350; Bell v. McAboy, 3 Brewst. (Pa.) 81. The law is also well established that, in the absence of an express agreement, the law implies an equal division of the profits of a joint adventure without regard to any inequality of contribution. 23 Cyc. p. 459; Wetmore v. Crouch, 150 Mo. 671, 51 S. W. 738; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; Van Tine v. Hilands (C. C.) 131 Fed. 124; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035 (1891). Counsel for the appellant assign as error the decree of the lower court, in that it awards plaintiffs a share of the stock rather than a money judgment, and that in this action the court, under the pleadings, was not authorized to have made an accounting between the parties. The law, however, is well established that a party to a joint adventure holding the profits of the venture may be held to account to his co-adventurers for their share of the property representing such profits in kind, and we see no error in the court giving respondents their share of the stock. In the case of Delmonico v. Roudebush (C. C.) 5 Fed. 165, the plaintiff demanded that he be declared the owner of a one-sixteenth interest in a certain mine. The court found that the defendant held a one-fifth interest in the mine as the net compensation for negotiating the purchase and sale of a certain option and gave the defendant a one-sixteenth interest of the one-fifth interest found to represent the net profits of the transaction. In the case of Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570, a certain proportion of stock held by the defendant as net profits of a joint adventure was awarded to the plaintiff. The profits of a joint adventure may consist, not alone of money, but of the unsold portion of the property which was the subject of the venture, or of property received as compensation for services rendered in connection with the venture. 23 Cyc. p. 460; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035; Scott v. Clark, 1 Ohio St. 382; Delmonico v. Roudebush (C. C.) 5 Fed. 165; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Marston v. Gould, 69 N. Y. 220. It is also well settled in law that one party to a joint adventure may sue the other at law for the breach of the contract, or share of the profits or losses, or a contribution for advances made in excess of his share, but the remedy at law does not preclude a suit in equity for an accounting. In this state, under our Code of Procedure, the district court in proper cases may administer both legal and equitable relief. 23 Cyc. pp. 453-461; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Petrie v. Torrent, 88 Mich. 43, 49 N. W. 1076; Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; McElroy v. Swope (C. C.) 47 Fed. 380; Van Tine v. Hilands (C.

We do not believe there is any merit in the contention of the appellant that the court erred in making an accounting of the amount expended, and in deducting the same from the amount found to be due plaintiffs, as the law applicable to the rules of partnership apply to joint adventures, and in suits between partners for amounts due them accountings are always allowed in an action of this character. The rules and principles of the doctrine of partnership apply generally to the relation of joint adventure. Church v. Odell, 100 Minn. 98, 110 N. W. 346 (1907); O'Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Marston v. Gould, 69 N. Y. 220; Wilcox v. Pratt, 125 N. Y. 688, 25 N. E. 1091; Kirkwood v. Smith, 47 Misc. Rep. 301, 95 N. Y. Supp. 926; Stone v. Wright Wire Co., 199 Mass. 306, 85 N. E 471; Calkins v. Worth, 215 Ill. 78, 74 N. E. 81 (1905); Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y. Supp. 13; Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370 (1890); Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904 (1894); Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; McMullen v. Hoffman (C. C.) 75 Fed. 547; Van Tine v. Hilands (C. C.) 131 Fed. 124; McElroy v. Swope (C. C.) 47 Fed. 380; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Delmonico v. Roudebush (C. C.) 5 Fed. 165; Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570.

In conclusion it is proper to observe, as the pleadings allege, and as the testimony discloses and findings of the lower court set forth, that these three co-adventurers jointly entered into an agreement, as alleged in the complaint, and which the court has found was entered into to consummate this deal. which resulted in so great an amount of good to the Goldfield mining district, and which paid so handsomely in profits to the parties undertaking the task of bringing the