Anderson v. Cliff Gold Mining Co.

• Citation: 47 Wyo. 349,38 P.2d 334
• Decision Date: 11 December 1934
• Docket Number: 1855,1856
• Parties: ANDERSON, ET AL. v. CLIFF GOLD MINING CO. (Two cases)
• Court: Wyoming Supreme Court

38 P.2d 334

47 Wyo. 349

ANDERSON, ET AL. v. CLIFF GOLD MINING CO. (Two cases)

Nos. 1855, 1856

Supreme Court of Wyoming

December 11, 1934

APPEALS from the District Court of Albany County; V. J TIDBALL, Judge.

Suit by Frank E. Anderson and another against the Cliff Gold Mining Company. From the judgment, defendant appeals and plaintiffs cross-appeal.

Affirmed.

Case No. 1855 was submitted for appellant on the brief of W. W Tipton, of Laramie.

Appellants' contention is that there was a desertion of the contract; that if the conduct of the plaintiffs and defendants did not amount to a proper declaration of a forfeiture, then it is our contention that a near failure by defendants to give plaintiffs written notice promptly upon plaintiff's breach of the agreement, did not amount to a waiver or estoppel. 40 C. J. 1026, Sec. 631; Island Coal Company v. Combs, (Ind.) 53 N.E. 452; Adams, et al. v. Knob Copper Company, et al., 7 F. 634; Penrose, et al. v. Penn. Forest Coal Company, (Pa.) 137 A. 670; West v. Brugger, (Kan.) 175 P. 673; Montrozona Gold M. Company v. Thatcher, (Colo.) 75 P. 595; Brown, et al. v. Vandergaft, et al., 80 Pa. St. 142; Lanyon v. Brewster Zinc Co., 140 F. 801; Van Sice v. Ibex Mining Co., 173 F. 895; Rees, et al. v. Adams, et al., (Okla.) 283 P. 231; Capps, et ux. v. Western Talc Company, (Wash.) 194 P. 554; Millar v. Mauney, (Ark.) 234 S.W. 498; Cherokee Construction Co. v. Bishop, (Ark.) 112 S.W. 189; Brooks v. Gaffin, (Mo.) 90 S.W. 808; Chauvenet v. Person, et al., (Penn.) 66 A. 855; Trumbo, et al. v. Persons, et al., (Ky.) 118 S.W. 916; Morral, et al. v. Wilson, et al., (Iowa) 70 N.W. 619; Kirk v. Mattier, et al., (Mo.) 41 S.W. 252; Duncan v. Campbell, (Ga.) 115 S.E. 651; Woodward v. Mitchell, (Ind.) 39 N.E. 437; Loveland v. Longhenry, (Wisc.) 129 N.W. 650; Clear Creek Leasing v. Comstock Gold and Silver Mining Co., 68 P. 1060; Ace M. & M. Co. v. R. U. M. Co., (Mo.) 247 S.W. 172. It is submitted, therefore, after extensive research, that the above authorities are inclusive of all the decided cases on the material points involved in this appeal, and that they sustain the contentions of the appellant in this appeal.

Case No. 1856 was submitted for appellant upon the brief of F. E. Anderson and case No. 1855 for respondent was also submitted on the brief of F. E. Anderson.

A summary of appellants' brief in case 1855 is as follows: Under the contentions as shown by the evidence, respondents would be relieved from their part of the contract. 20 C. J. 1023; Girton v. Daniels, 129 Pa. 555; Virginia Iron, Coal and Coke Co. v. Graham, 98 S.E. 659; Buchanan v. Layne, (Mo.) 68 S.W. 952; Auxier Coal Co. v. Big Sandy & Millers Creek Coal Co., 238 S.W. 189; Fritzler v. Robinson, (Ia.) 31 N.W. 61; South Pen Oil Co. v. Edgell, 86 Am. St. Rep. 43; Rembarger v. Losch, 118 N.E. 831. Appellant was not damaged by acts of respondents and did not allege or prove damages at the trial. We will now consider the exceptions given to plaintiffs below, appellants in this case numbered 1856. When the findings and conclusions of law of the trial court are considered in connection with the evidence, we believe the following authorities will sustain our position. Courts will not decree a cancellation of a contract for the failure of a party to strictly comply with the terms of the lease when it would be unconscionable to do so. Edwards v. Iola Gas Co., 69 Pa. 350. Equity will never enforce a forfeiture when no pecuniary or substantial injury has resulted. Pheasant v. Hanna, 60 S.E. 618. The finding and judgment below that the mining lease and agreement remained in full force and effect until defendant shall deed back to plaintiff the seventy foot strip of ground deeded to defendant by the plaintiffs, and the judgment that plaintiffs had the right to use the tunnel of defendant company in mining and taking ore from their own ground and from the Cavanaugh Winze lessee, should be sustained, also the finding and judgment that the mining lease is one inseparable agreement as to the winze and the use of the tunnel, and that the seventy foot strip of ground was not a separate consideration for the use of the Cliff Gold Mining Tunnel, should be reversed and interpreted to express the real intent of the parties.

Reply brief for appellants in case No. 1855 and answer brief of respondents in case No. 1856, by W. W. Tipton.

The deeding of the seventy foot strip to the Cliff Company and the dismissal of suits were a separate consideration for the use of the Cliff Tunnel and the royalty to be paid on ore taken from the Cavanaugh winze plus the continued working thereof, was a separate consideration for the use of the winze. The second main contention of the plaintiffs is that even if the mining lease and agreement were one inseparable agreement, and that the consideration moving from the plaintiffs therefore, included (1) the deed for the seventy foot strip and (2) the dismissal of suits, also (3) the promise to promptly and diligently work the Cavanaugh winze, then the plaintiffs are excused from performance of this third condition because of mutual mistake. The following cases are submitted in support of these contentions: (1) Virginia Iron, Coal and Coke Company v. Graham, 98 S.E. 659; (2) Buchanan v. Layne, (Mo.) 68 S.W. 952; (3) The Auxier Coal Company v. Big Sandy Creek Coal Co., 238 S.W. 189; (4) Fritzler v. Robinson, 70 Iowa 500, 31 N.W. 61. The rule pertaining to mistake is laid down by 2 Pomeroy, 4th Ed. 854; see also Beatie v. Rocky Branch Coal Company, 56 Mo.App. 221; 1 Pomeroy, 4th Ed. 382.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

These two cases in this court are predicated upon the same record and come here under the direct appeal method of review, for the purpose of questioning a judgment of the District Court of Albany County. Specifications in error have been filed by the several parties, each claiming the judgment to be erroneous in certain particulars. The briefs in these cases have been consolidated. In consequence of these facts and the views we entertain concerning the questions raised, one opinion will suffice to dispose of the litigation as it now appears at bar.

The action in which the record aforesaid was made was commenced in the district court above mentioned, by Frank E. Anderson and Jacob Schnitzler, who will generally be hereinafter referred to as the "plaintiffs" or by their respective names, against the Cliff Gold Mining Company, a Wyoming corporation, subsequently herein mentioned as the "mining company" or as the "appellant."

The petition of the plaintiffs, to summarize it, pleaded an alleged "mining lease and agreement" entered into between them and the mining company on September 30, 1932, the performance by the plaintiffs of the requirements of that agreement resting upon them; an alleged attempted wrongful cancellation of this agreement by the mining company; and a prayer that the court interpret the contract, define the rights of the parties, and give supplemental relief under the terms of the Uniform Declaratory Judgments Act of this state. Briefly, the answer of the mining company admitted that the parties had theretofore entered into the agreement aforesaid, denied that plaintiffs had performed the obligations incumbent upon them thereunder, and denied that the mining company had wrongfully undertaken to cancel the contract. It also affirmatively alleged that plaintiffs had abandoned the property leased and had failed to work it as the agreement required, on account of which fact the mining company had, as permitted by the terms of the contract, cancelled it. The answer prayed that the plaintiffs take nothing by their action. Plaintiffs' reply, in substance, placed in issue the affirmative matter set forth in the answer.

The trial of the case was to the court without a jury. But two witnesses, the plaintiffs themselves, testified when the case was heard, the mining company introducing no testimony whatsoever. The facts necessary to an understanding of the problems submitted for our solution would appear to be essentially these:

The plaintiffs are the owners of certain patented mining claims, known as the Ocean Wave and the Ocean Wave No. 1. The mining company owns ground adjoining and parallel to the two claims aforesaid and on the northwest side thereof. A tunnel seems to have been driven into the mining company's property, which has been extended into the ground patented to the plaintiffs, a distance of some seventy feet. Differences having arisen between the parties, plaintiffs instituted an action in the district court against the mining company, seeking, among other things, the cancellation of a prior agreement between them relative to the ground in which the tunnel aforesaid was located. This action was pending on September 30, 1932, when the parties, represented by their respective counsel, in an effort to reach an amicable settlement of their difficulties, entered into the "mining lease and agreement" previously mentioned, as pleaded in plaintiffs' petition.

That agreement in effect provided that the plaintiffs should have the use of the tunnel aforesaid for the purpose of mining prospecting, and removing ore from their own property, for an indefinite period, and also the right to use the track in said tunnel with the machinery and buildings connected therewith. As a consideration for these rights and also the leasing to them of the Cavanaugh winze hereinafter referred to, the plaintiffs, it was agreed, should dismiss the pending litigation between them and the mining company and should deed to the latter, seventy feet of ground, a part of the patented property of the plaintiffs which had been cut by said tunnel, this deed to contain...