slightest ground for a pretense that any one else would have bought the property before it had irrevocably passed from the control of the partnership; and it would be a harsh and unwarranted finding for a court of equity to say that the evidence requires a decree ordering defendant to divide title to the mine with plaintiff. Such a conclusion could only rest upon the misapplication of a beneficent rule relating to partnership transactions. It is true that defendant purchased a few hours or moments before the partnership lost control of the four-fifths interest; but, under all the surrounding circumstances, we are of opinion that this fact is of but slight importance. We do not believe that this is a proper case for the application of the partnership rule relied upon. We accede to the force of some of counsels' suggestions, but cannot conclude that any principle of justice or equity would sustain us in finding, as a matter of law, that defendant advanced the $18,500 purchase money for the benefit of the partnership business. Plaintiff's claim to a half interest in the mine must be denied.

It appears, however, that the sum of $2,500 was at one time paid to defendant by the New York party, upon the purchase price. Through his failure to secure the balance, this sum was forfeited by the wouldbe purchaser. It came into defendant's possession as one of the partners, through the partnership business, and unquestionably it became partnership property after subtracting expenses therefrom. Under our view of the written agreement above stated in full, plaintiff was half owner of the remainder. But in order to procure the extension from Wade to December 10th, upon the four-fifths interest, defendant advanced him on the purchase price, and as a forfeit, $1,500 in money. This extension was obtained for the benefit of the partnership enterprise, and we must presume that the money advanced was from the partnership funds in the possession of defendant. Had the Wade interest not been bought, we do not doubt for a moment but that this forfeited sum would have been accounted expenses, and deducted from the $2,500 of partnership profits.

The price of the Wade interest agreed upon at the time of granting the extension last above mentioned, was $17,000. Defendant himself testified that on December 10th he paid Wade this amount less the $1,500 theretofore advanced, to-wit, $15,500. Considering that defendant paid the latter sum, and also $3,000 for the Mears interest from his private funds, the fact remains that he received the benefit of the $1,500 partnership advancements; and when he chose to accept the advantage of the partnership forfeit thus advanced, he also accepted the legal consequences following his act. What were these consequences? It is contended on one side that he thereby became a trustee for the firm to the extent, at least, of a proportionate interest in the mine. It is urged on the other side that this sum was absolutely forfeited and lost, so far as the partnership is concerned, and that defendant's action created no sort of an obligation

or liability in favor of plaintiff or the firm. Had this money been advanced or invested in the first instance with a view to the purchase of the property for the partnership, a resulting or constructive trust might have been created. On the other hand, had the partnership business absolutely terminated the control of the four-fifths interest reverting entirely to its owner, and had he subsequently sold to defendant for $15,500, giving the latter the benefit of the $1,500 advancement as a personal favor, it may be that the partnership, in the absence of any bad faith on defandant's part, would be entitled to no benefit whatever by reason of the purchase. This position, however, is not entirely free from doubt, and we do not assert its correctness. But the advancement of this $1,500 was originally made solely with a view to obtaining more time within which the firm might realize a profit as brokers through a sale to some third party. At the date of paying this money there was no intention to have the title pass to the firm, or either member thereof, except a sale was first concluded to another; and the fact that in the latter event the title would incidentally pass through defendant is of no significance whatever; it was merely one of those formalities often resorted to for the purpose of securing certainty, celerity, and convenience in such transactions. There was in this advancement no departure from the original purposes of the partnership. We have already determined that the evidence in this case clearly warrants the conclusion that the defendant acted throughout the transaction with the most scrupulous fidelity to the partnership interests; and that in buying the property he took no such advantage of the fiduciary relation as would justify a declaration in equity that he advanced the purchase money for the firm, and that upon repayment of a moiety thereof plaintiff would be entitled to one-half of the property. Did defendant's purchase, a few hours before the partnership relation terminated, under these circumstances, in and of itself alone, create a resulting trust in favor of the firm as to the three-eightieths of the mine,-the proportion of the entire purchase money represented by the $1,500 advancement? There is no actual fraud or bad faith. On availing himself of the benefit of this advancement, was defendant guilty of such constructive fraud as, ipso facto, produces a constructive or resulting trust? Courts of equity carefully avoid giving positive and specific definitions of fraud. Human ingenuity would doubtless discover ways of evading such definitions, though worded with the utmost learning, discernment, and skill. Only the most general declarations on the subject are ventured; such as that it is "the unlawful appropriation of another's property, with knowledge, by design, and with criminal intent." Also that in equity it "includes all acts, omissions, or concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another." 1 Bouv. Law Dict. 612, 613. But while this is true, there have been attempts at

a classification of frauds under different general heads. The one that appears to be most widely accepted is that of Lord HARDWICKE in Chesterfield v. Janssen, 2 Ves. Sr. 155. It is thus stated by Mr. Bouvier:

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"(1) Fraud, or dolus malus, may be actual, arising from facts and circumstances of imposition. (2) It may be apparent from the intrinsic nature and subject of the bargain itself. *(3) It may be inferred from the circuinstances and condition of the parties. * * *(4) It may be collected from the nature and circumstances of the transaction, as being an imposition on third persons."

Adopting the foregoing classification, it is obvious that the constructive fraud in this case, if such there was, must be apparent from the intrinsic nature and subject of the bargain itself; or it must be "inferred from the circumstances and condition of the parties." It cannot arise under the former head, because there is nothing in the "intrinsic nature and subject of the bargain" which would render the transaction unreasonable, dishonest, or unfair, so far as either plaintiff or defendant is concerned; it is not embraced by the latter head, for the reason that, as already shown, no unconscientious advantage is here taken of the fiduciary relation-no unjust or inequitable benefit is derived by defendant through plaintiff's weakness, necessity, or ignorance. Nothing need be added to what has already been said upon the evidence, and conclusions of fact properly deducible therefrom, in support of these statements.

Viewed in the most reasonable light, defendant's conduct amounts simply to this: In making a private purchase, after there was no longer a hope of success in the partnership business, he availed himself of a compartively small advancement by the firm that would otherwise have inevitably been forfeited; an advancement made for a collateral purpose, and not with a view to obtain title for the firm to the property bought. In so doing he prevented the absolute forfeiture, and saved to the partnership the sum of $1,500. After taking the title, he breathed new life into the partnership business by extending the privilege, which would otherwise have been lost, of realizing the profits anticipated through a sale of the property. Defendant obtained a benefit from the partnership investment, it is true, but in so doing, he took no advantage of the firm, and no loss or injury or disadvantage in any way accrued to the partnership or through it to the plaintiff; on the contrary, as before stated, two direct and positive benefits were secured to the firm by the transaction, viz: First, additional time was obtained for consummating the sale to the New York party; and, second, $1,500 was saved to the partners.

At the time of procuring the last extension from Wade, defendant, besides paying the $1,500 forfeit money above mentioned, also loaned him an additional thousand dollars without interest; and it is urged that this constituted the remainder of the $2,500 theretofore paid to defendant for the extension to the New York party; and that by rea

son of this loan also the plaintiff, through the partnership, obtained some equity in the mine. If this transaction could in any event be considered as a loan from partnership funds it cannot be regarded as producing the effect contended for. This money did not, like the $1,500, become a part of the purchase price; the evidence justifies the conclusion that it was afterwards accounted for to the defendant, and he would have held it as a trust fund had he not bought the mine. For the purposes of argument, we may assume that he held it in his possession on December 10th when he made the purchase. But he had ample means of his own to pay the entire purchase price for the property; and there being no design of the partnership to buy for itself, and no advantage being taken of a fiduciary relation, equity will not attempt to follow this money into the mine. As to this sum, the case before us, under the other facts above narrated, may be considered analogous to that where A., holding a trust fund, invests from his individual resources in property, for the purchase of which there has been no discussion between him and his cestui que trust, A. must account for the trust fund; but no court will attempt, from the mere fact of his being a trustee, to fasten upon the realty bought a trust estate in favor of his beneficiary. We are, therefore, of opinion that equity ought not to decree a trust in plaintiff's favor as to any portion of the mine in controversy.

In support of this conclusion a number of considerations not hitherto noticed might be mentioned. If a trust existed, resting upon the fraud or bad faith of defendant clearly established, we are hardly willing to declare that plaintiff's laches alone in beginning his suit would be sufficient to prevent a decree in his favor. But, on the other hand, his hesitating and vacillating conduct is not such as to commend him strongly to the favor of a court of equity. While we are not fully prepared to say that he remained silent too long when he ought to have spoken, and that now equity will not permit him to speak when he ought to be silent, yet his petition will be listened to with less indulgence than if he had been more consistent and diligent.

Upon making the "astonishing" discovery that defendant had taken the title and placed the deeds of record, plaintiff offered to refund no part of the purchase money, and affirmed no claim to an interest in the mine. No such interest was asserted until about the commencement of suit, some 20 months later. During these 20 months defendant expended the additional sum of $20,000 in prospecting and developing the mine, without receiving any return. Through such expenditure the value of the property was greatly enhanced; uncontradicted testimony showing $290,000 worth of ore in sight at the date of trial. Plaintiff stood quietly by, and made no proffer of aid, financial or otherwise, in this development work. He complained of unfairness in the purchase by defendant, but only asked-First, the extension to the New York party; and, second, a promissory note for $10,000, pay

able when the mine should be sold. The first request, as we have seen, was granted; the second was peremptorily refused. He accepted, without objection, the $3,000 paid by defendant for the Mears interest, and accounted therefor to his principal.

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Explaining his conduct in the foregoing and other particulars, plaintiff shows that he was in very bad health; that he was obliged to be absent from Lake City, where the mine is located, several months of the time; that on one occasion, in answer to his assertion that he had been wronged in the matter, defendant promised, "as a man and a Mason," that upon sale of the mine, he "would make it all right;" and that at another time he declared to a third person that he had "agreed to give Kayser a certain sum of money for his services, out of any proceeds of a sale made by him," and he should fulfill his agreement. This voluntary promise, which the evidence sufficiently establishes, necessarily indicates neither a claim of interest in the mine by plaintiff, nor an acknowledgment on the part of defendant of any such interest; on the contrary, it would seem to show a demand for compensation on account of services rendered, and a sort of recognition of the justice thereof. But it is insisted that, relying upon this assurance, plaintiff postponed taking earlier action to assert his rights.

We do not perceive in these extenuating circumstances, however, any excuse for plaintiff's failure to sooner assert his claim of interest in the mine, and giving the evidence a construction most favorable to him. His conduct does not appear with that freedom from negligence and suspicion desired in equity. It invites the suggestions made by counsel for defendant that plaintiff himself is guilty of bad faith, and does not come into equity with clean hands; that he did not believe himself entitled to any interest in the property, and at first had no idea of asserting such claim; that this suit was an after-thought, suggested by the success of defendant's development work, and the unexpected discoveries of large quantities of valuable ore resulting therefrom; that plaintiff is simply attempting to share in the profits accruing from another's enterprise, investments, and risks, though conscious that he has no equitable right thereto,-a practice which is altogether too common in mining countries, and cannot be too severely condemned. We do not affirm the justice of these strictures upon the foregoing and other acts of plaintiff; we simply say that they are not entirely devoid of plausibility and reason; that his standing in equity would be much stronger had he pursued a different course; and that in a doubtful case these matters might be sufficient to turn the scale against him.

From what has already been said, it appears that, while we decline to recognize the existence in plaintiff's favor of a trust in the mine, we are, nevertheless, of opinion that there are partnership profits in defendant's hands. No offer of an accounting nor specific demand therefor has been made. Defendant may have regarded the Wade