Winters v. Ethell
| Decision Date | 25 November 1889 |
| Citation | 132 U.S. 207,33 L.Ed. 339,10 S.Ct. 56 |
| Parties | WINTERS et al. v. ETHELL et al. 1 |
| Court | U.S. Supreme Court |
M. Kirkpatrick, for appellants.
S. Shellabarger and J. M. Wilson, for appellees.
This is a suit brought in the district court of the second judicial district of Idaho territoty, in and for the county of Alturas, by George F. Settle and Jacob Reeser against John B. Winters, Frank Ganahl, and John Winkelbach. The complaint alleges that the plaintiffs, being the owners of a mining property, licensed the defendants to work it on the terms and conditions expressed in a written agreement and a supplemental agreement, for a definite period; that, under the agreement, the defendants were to work the mine during that period at their own expense, keep the property free from liens, and pay to the plaintiffs, as a consideration, one-half of the gross proceeds from the mine; that, if the defendants should pay to the plaintiffs, on or before November 27, 1883, the termination of the said period, out of the proceeds of the mine, or otherwise, $40,000, the plaintiffs should convey the property to the defendants; that, in the event of such payment by the defendants to the plaintiffs within the time specified, any and all sums theretofore received by the plaintiffs from the defendants as consideration for the use and working of the mine should be credited upon and deducted from the $40,000; that, if the defendants should fail to comply with any of their agreements, or should not, on or before the day named pay the $40,000 to the plaintiffs, they should forfeit all rights under the agreement, and no longer work the property; that the defendants proceeded to work the mine, and continued, during the period mentioned, to extract large quantities of gold and silver ore from it; that, on the 24th of November, 1883, the agreement was extended, in writing, to December 27, 1883; that the defendants had paid to the plaintiffs only $21,000 out of the $40,000, which sum was realized out of the working of the mine, and was not in excess of the one-half of its gross proceeds; that the defendants were continuing to work the mine, and were insolvent, and, during the 30-days extension of time, had extracted and removed large quantities of ore, for which they had failed to account to the plaintiffs; and that the defendants threatened to continue to extract the ore. The prayer of the complaint is for an injunction restraining the defendants during the pendency of the suit, and also by a final order on the hearing, from entering upon on interfering with the possession of the property, or from extracting or removing from the mine any rock or ore, and for an accounting by the defendants with the plaintiffs concerning all rock or ore taken from the mine by the defendants, and for the payment by them to the plaintiffs of a moiety thereof; and that the amount found...
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