Bear Track Min. Co. v. Clark

• Citation: 54 P. 1007,6 Idaho 196
• Parties: BEAR TRACK MINING COMPANY v. CLARK
• Decision Date: 25 October 1898
• Court: Idaho Supreme Court

54 P. 1007

6 Idaho 196

BEAR TRACK MINING COMPANY v. CLARK

Supreme Court of Idaho

October 25, 1898

CONTRACT-SPECIFIC PERFORMANCE.-A party to a contract, in order to obtain judgment for the specific performance of the contract, must show that such contract is fair, complete, mutual, reasonable and based upon an adequate consideration.

SAME-WHEN WILL NOT BE ENFORCED.-A contract by which C., the owner of a one-half interest in a mining claim, agreed to convey such interest to M., solely in consideration of the doing of certain development work on said mining claim by M., is neither fair, mutual, reasonable, nor based on an adequate consideration, and cannot be enforced by judicial decree.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Reversed and remanded.

James E. Babb, for Appellant.

The written contract between the parties dated November 22, 1895 specified no time for performance by Moore. Therefore the law required performance within a reasonable time (19 Am. & Eng Ency. of Law, 1990), and the contract cannot be contradicted by evidence that the parties agreed on a specific time. ( Cocker v. Franklin Hemp Flax Mfg. Co., 3 Sum. 530 Fed. Cas. No. 2932, per Story, J., and cases cited; 19 Am. & Eng. Ency. of Law, 1090, 1091; 1 Greenleaf on Evidence, 14th ed., sec. 275.) The contract, not the evidence of the contract, but the contract itself, if there was one, is so uncertain in its terms and provisions as to preclude the court from decreeing its specific performance. We contend that by the contract as written and signed by the parties November 22, 1895, that its failure to specify or fix any time for performance created such uncertainty as would preclude the entry of a decree of specific performance. ( Gates v. Gamble, 53 Mich. 181, 18 N.W. 631; Potts v. Whitehead, 20 N. J. Eq. 55; Schmelling v. Kriesel, 45 Wis. 325; Williams v. Stewart, 25 Minn. 516; Diamond State Iron Co. v. Todd (Del.), 14 A. 27; Edichal Bullion Co. v. Columbia Gold Min. Co., 87 Va. 641, 13 S.E. 100; Oxford v. Crow, 3 Ch. 535 (Eng.) 1893; 22 Am. & Eng. Ency. of Law, 1006; Tribune Co. v. Associated Press, 83 F. 350; Miller v. Morley Finishing Machine Co., 87 F. 621.) In respect of time of performance of a contract to acquire title to a mine, or an interest in a mine, it has been held by the supreme court of Idaho that time is of the essence. ( Durrant v. Comegys, 3 Idaho 204, 28 P. 425; Seattle v. Winters, 2 Idaho 215, 10 P. 216.)

Forney, Smith & Moore, for Respondent.

Respondent, in addition to discussing the points made by appellant, in his brief, presents the following points and authorities: 1. A mining claim perfected under the law, is property in the highest sense of that term, which may be sold, and conveyed, and will pass by descent and is real property. (Idaho Rev. Stats., sec. 16, subd. 2; Ah Kle v. McLean, 3 Idaho 538, 32 P. 200.) 2. Courts have the power to compel the specific performance of an oral contract for the conveyance of real property, in case of part performance thereof. (Idaho Rev. Stats., secs. 6007, 6008; Hunt v. Hayt, 10 Colo. 278, 15 P. 410; Day v. Cohn, 65 Cal. 508, 4 P. 511; Foster v. Maginnis, 89 Cal. 264, 26 P. 828; Flickenger v. Shaw, 87 Cal. 126, 22 Am. St. Rep. 234, 25 P. 268; Tohler v. Folsom, 1 Cal. 207; Augualle v. Ettinger, 10 Cal. 150.) 3. The assignee of a party named in an oral contract for the conveyance of land may maintain an action for the specific performance of the contract against the grantor, where the right is based upon or the right is acquired by part performance of the contract. (Owen v. Frink, 24 Cal. 171; Idaho Rev. Stats., sec. 2891; Calanchini v. Branstetter, 84 Cal. 250, 24 P. 149.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

This action was commenced by the plaintiff, a corporation, as assignee of one H. K. Moore, to obtain a decree for specific performance of a contract relating to the conveyance of an undivided one-half interest in and to a certain unpatented mining claim. The description of the property and the allegations of the contract are contained in paragraphs 2 [6 Idaho 198] and 3 of the complaint, in the following words, to wit: "That on the twenty-second day of November, 1895 the defendant was the owner of, and in the possession of, an undivided one-half interest in and to the following described property, situated in Idaho county, state of Idaho to wit: 'That certain quartz claim located in Bear Track gulch, in the Florence mining district, Idaho county, state of Idaho known as, and commonly called, the "Bear Track Claim," as located by one Christopher Arnold, on the seventeenth day of February, 1886, the same being situated about two and one-half miles northeast of the old town of Florence, in said county and state.' That on the twenty-second day of November, 1895, the said defendant and one H. K. Moore entered into an agreement or contract whereby the said H. K. Moore promised and agreed to and with the said defendant to do certain development work on the 'Bear Track Quartz Claim,' in Florence, Idaho during the year 1896, which said development work consisted in sinking ten feet of shaft at the bottom of a certain shaft then upon said claim, and drifting twenty feet on the vein or lode from any point in said shaft thirty feet or more below the surface of the ground at the top of said shaft, all of which said development work was to be done by the said H. K. Moore at his own cost and expense, and during the year 1896, and prior to the first day of January, 1897, in consideration of all of which the said defendant, John Clark, promised and agreed to and with the said H. K. Moore that if he, the said H. K. Moore, would do and perform such development work during the year 1896, and prior to the first day of January, 1897, he, the said John Clark, would set over, transfer, and convey, by a good and sufficient deed of conveyance, unto the said H. K. Moore, his one-half interest in and to the said Bear Track quartz claim, when and as soon as he the said H. K. Moore had fully completed and performed the said development work as aforesaid; and that in consideration of the performance of the said development work as aforesaid by the said H. K. Moore, he, the said H. K. Moore, should become the owner of, and should have, the said undivided one-half interest in and to said Bear Track quartz claim, so situated as aforesaid; and that the said Bear Track quartz claim, herein in this paragraph mentioned and referred to, is the same and identical mining claim mentioned and referred to in paragraph 2 hereof as the Bear Track claim." The complaint then alleges that the said Moore performed his part of the contract, on or about the first day of November, 1896, by sinking said shaft ten feet deeper, and by drifting twenty feet from a point in said shaft more than thirty feet below the surface; that thereafter, and on June 18, 1897, the said Moore assigned said contract to the plaintiff,...