Alberson v. Elk Creek Gold-Min. Co.

• Decision Date: 05 August 1901
• Citation: 39 Or. 552,65 P. 978
• Parties: ALBERSON v. ELK CREEK GOLD-MIN. CO.
• Court: Oregon Supreme Court

65 P. 978

39 Or. 552

ALBERSON v. ELK CREEK GOLD-MIN. CO.

Supreme Court of Oregon

August 5, 1901

Appeal from circuit court, Union county; Robert Eakin, Judge.

Action by J.L. Alberson against the Elk Creek Gold-Mining Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W.T Wright, J.C. Moreland, and J.T. Wright, being the owners of a mine known as the "Robert Emmet Quartz Lode," entered into an agreement with John H. and Frank J. Davey August 8, 1899, by the terms of which they executed a deed thereto in favor of the Daveys, and placed the same in escrow, to be delivered to them upon condition that they enter into possession thereof, do certain development work and make such improvements as they might deem necessary to put it in a producing condition; they to elect whether they would purchase the same, and accept the deed, within six months. It was further agreed that, in case the Daveys should elect to purchase, they would pay therefor $5,000 in cash and execute four promissory notes for $5,000 each, payable three, six, nine, and twelve months from February 8, 1900, the deed to remain in escrow until all notes were fully paid; but that, in case of default in payment of any of them, or any part of either, time being made of the essence of the contract, they were to forfeit all their rights in and to the mine, and all moneys theretofore paid. It was also agreed that the Daveys should pay for all supplies furnished and labor done on said mine, not allow any lien to be placed thereon, and should save the owners harmless from any and all liens for labor or supplies of any kind and nature upon the mine; and that, in case they should elect not to take the mine under the option, they should immediately surrender the same. After entering into possession, the Daveys purchased of the plaintiff certain property, which was subsequently included in their chattel mortgage to him, consisting of 11,250 pounds of steel rails, 400 pounds spikes, 312 pounds fish plates, 34 1/2 pounds bolts, 2 ore cars, 2 half-inch wire cables, 400 feet long, break station, ore bins, and other material for the tramway, 1 Montgomery whim, with 2 ore buckets, and 1 set of trucks, and sundry tools and supplies. With this material they constructed a complete system for hoisting and conveying ore from the mine and depositing it in the bins. The whim is situated at the shaft, rests upon a timber foundation, is attached to and connected with the shaft house, and is utilized, with the wire cable buckets, and trucks, in hoisting the ore from the mine. The steel rails form a tramway or car track extending 1,020 feet from the shaft on a level to the break station, thence 420 feet down an incline to the ore bins. They are spiked to wooden ties resting upon the ground, and the fish plates and bolts serve to connect them. The break station is built of timbers, and consists of a drum resting upon a substantial foundation, over which a wire rope or cable runs, and is utilized to draw the cars along the incline to and from the ore bins. The bins are constructed of timbers and plank, and the cars are used upon the tramway for transporting the ore, which is dumped into them from the buckets at the whim, to the break station, and thence to the ore bins. The action is to recover the possession of the said personal property. It is alleged in the complaint that John H. and Frank J. Davey, on February 1, 1900, executed and delivered to the plaintiff a chattel mortgage thereon, which was duly filed and recorded March 20, 1900, and his right to the possession is founded upon this mortgage. The defendant claims title by virtue of a conveyance by deed from W.T. Wright and J.C. Moreland of an undivided thirteen-sixteenths of the mine, with its appurtenances. Judgment was for the plaintiff, and the defendant appeals.

T.H. Crawford, for appellant.

J.M. Carroll, for respondent.

WOLVERTON, J. (after stating the facts).

When the plaintiff submitted his evidence and rested the defendant moved for a nonsuit, which was denied, and the principal controversy is as to whether the court committed an error in so doing. There was evidence tending to show that the Daveys purchased the larger portion of the property from the plaintiff, and, being indebted to him in the sum of $690.73, gave him the chattel mortgage to secure its payment, bearing at the left-hand margin, opposite, but a little below, the signatures, the date "Feb. 1st, 1900." It is shown by a certificate of John M. Gilkison, county recorder of Union county, that it was recorded March 20th following. This instrument, and the note evidencing the indebtedness, payable in 45 days after date, were offered and admitted in evidence. In this state of the record, the plaintiff testified as follows: "I went to Mr. Davey [Frank J.], and told him that the note was due, and I wanted the money; that I wanted to get it settled up, or I wanted the property. Then he told me that the property was mine, and I could come and take it at any time. Shortly after that he made me the mortgage. I don't just remember the date when I went to him and demanded the property, and he turned it over to me." He fixes the date as being directly after the note became due, or "some time about the first of April," and says that the property was afterwards taken from his possession by the defendant. He further testifies that he exercised ownership over the property by giving C.E. Davis, a director of the defendant, permission to run some hay over the tramway, and locking up the whim, and that immediately thereafter the defendant took possession; that some time in May he told Davis that he had a bill of sale of the property, referring to the chattel mortgage, which he showed him. There was further evidence tending to show that Davis had notice of its existence. Frank J. Davey testified that he turned the mortgaged property over to the plaintiff some time in April; that the property was placed upon the mine for the purpose of developing it,--doing developing work under the option; that "it was placed there in a temporary manner at the time,--in such manner that it could be removed if we decided not to exercise the option"; that the whim has been moved three or four times; that the property could be removed without detracting from the value of the realty; that it is used for the extraction of the ore from the mine, and, when that is accomplished, there will be no further use for it; that they accepted the option to purchase on the 7th day of February, 1900; that they executed the mortgage to plaintiff prior to that time, namely, on the 1st day of February; that they subsequently forfeited the mine, and it went back to the original parties from whom they had taken the option; and that, when they returned the personal property over to the plaintiff, they did it to satisfy the debt. On cross-examination he further testified that the property was put on the mine to be used in getting the ore out, to see if the mine would pay, and to develop the property. And John T. Wright, one of the original owners, testified that the Daveys forfeited the mine under their agreement, and that when he went to take possession for the owners he found it in the possession of Lawrence Painter, representing the owners, "and the personal property that had been put on the mine" in charge of the same person for Mr. Alberson; and that he recognized Painter as holding possession in the dual capacity indicated, made no objection thereto, and so reported to the other owners. Painter had been authorized to take charge of the mine by W.T. Wright, and had been in possession about 24 hours. Subsequently, W.T. Wright and J.C. Moreland conveyed the undivided thirteen-sixteenths interest to the defendant.

It is first insisted that by reason of plaintiff's statement that he obtained the mortgage shortly after the note became due, which was 45 days after February 1st, and of the fact that it was not filed until March 20th, it conclusively appears that it was not executed until about the latter date. It is manifest that the plaintiff became somewhat confused in his statement, and it is not quite clear what idea he intended to convey by the...