We find no exceptions in the record, and the only error assigned is that the court erred in not giving judgment in favor of the plaintiff, as a necessary legal conclusion from the findings of fact, the pleadings, and the proper interpretation of the contract sued on. We think the findings of fact conclusively negative this contention. It seems that both parties agree, (and it is the only point on which they are agreed,) that according to the terms of the contract of the 11th of September, 1885, the share of Clasbey, the defendant, in the 25,000 shares of stock in the mining corporation was to be determined by the original cost of that stock. In other words, that if it was 62 1/2 cents per share, Clasbey was entitled to a subscription of only 8,000 shares, and the plaintiff Egan to 17,000, in which case the allotment to Clasbey in the articles of incorporation was put there by the mistake and inadvert ence of the draughtsman, and subject to correction in a future adjustment between those two parties; but if it was 50 cents a share, then the defendant Clasbey was entitled to 10,000 shares and the plaintiff to 15,000 shares, in which case the defendant was under no obligation, in any future adjustment of stock between them, to turn over any part of his said shares to plaintiff. The decisive question, therefore, to be determined is, what was the original cost of the 25,000 shares that, under the contract, were to be divided between the parties to this suit? The eighth finding of fact says: 'The actual original cost of the 25,000 shares was fifty cents per share.' This, in our opinion,is absolutely conclusive against the claim of the plaintiff. Such a finding cannot be twisted and turned into a conclusion of law. Nor do we consider as well taken the proposition of counsel for the appellant, that as a finding of fact it is inconsistent, in effect, with the other findings, respecting the original cost of either the mining property of its equivalent, the capitalized stock of the company. It is insisted that these findings show that, in addition to the original price of $50,000, the plaintiff, with other members of the company, advanced divers sums that increased the amount upwards of $62,000. The reply to this is that the findings of fact show that those sums were advances and loans made to the corporation, were treated as such by the plaintiff and those who contributed with him, and were refunded to them out of the net earnings of said corporation, leaving the sum of $50,000 as the actual outlay by plaintiff and the others purchasers of the mine. They cannot, therefore, be included in the estimate of the original cost as between the two parties to this suit.
Equally conclusive, in our opinion, is the tenth finding of facts, taken in connection with the eighth, upon the question of the defendant's counter-claim. It appears from that finding that the defendant, at the request of the plaintiff, delivered to plaintiff 500 shares of stock to enable the latter to fill a sale, and 25 shares which the plaintiff desired to give to another person. This stock was delivered to plaintiff, subject to the adjustment of their stock account. We think the pleadings and findings in this case fully sustain the judgment of the supreme court of Utah territory, and it is, therefore, affirmed.
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