Beck v. O'Connor

• Decision Date: 09 May 1898
• Citation: 53 P. 94,21 Mont. 109
• Parties: BECK v. O'CONNOR et al.
• Court: Montana Supreme Court

53 P. 94

21 Mont. 109

BECK v. O'CONNOR et al.

Supreme Court of Montana

May 9, 1898

Appeal from district court, Carbon county; Frank Henry, Judge.

Action by William Beck against William O'Connor and another. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action to recover the sum of $1,250, which plaintiff claims to be due as a balance of the purchase price of an interest in a bond and lease sold by him to the defendant O'Connor in and to certain mining property mentioned in the complaint. From the record it appears that on the 24th day of September, 1891, George W. Stapleton and others leased to Henry Addoms and Mark Welch a mining claim in Silver Bow county, known as the "Spur Lode Mining Claim," for the term of one year. By the terms of said lease, the lessees bound themselves and their assigns to take possession of the leased premises, and work and mine the same in an economic proper, and miner-like manner, and especially to sink an incline, which had already been sunk on said premises 200 feet, an additional depth of 100 feet, of the same size as the incline already constructed, and to properly timber the same. It was provided in said lease, that the lessees should work the property continuously during the term of the lease and that a failure to work it for a period of 10 consecutive days should operate as a forfeiture of the lease. The lease also provided that a failure on the part of the lessees to comply with any of the terms or covenants contained therein should work a forfeiture thereof. The lessors, at the time of the execution of the lease, executed to the said Addoms and Welch a bond for a title to the leased property, upon the condition that the said Addoms and Welch should pay to them the agreed purchase price within the time specified in said bond. Thereafter Addoms and Welch assigned to L. B. Olds an undivided five-sevenths interest in the lease, and in all the estate, right, and title acquired thereunder, upon the condition that said Olds comply with the covenants and terms of said lease, and at the same time assigned to said Olds the undivided five-sevenths interest in and to the title bond above mentioned, together with a five-sevenths interest in all rights, title, and estate to be acquired thereunder, upon condition that Olds would carry out and perform the conditions of said bond. Olds immediately entered into possession of the leased premises, and commenced to work and mine the same, in accordance with the terms of the lease. Addoms and Welch never did any work on the leased premises. In February, 1892, Addoms and Welch conveyed by quitclaim deed to the plaintiff, Williams Beck, a two-sevenths interest in and to the lease and bond mentioned above. Such interest was conveyed to Beck without the written consent of said lessors. On the 15th day of March, 1892, Beck entered into a written contract with defendant O'Connor, by which he sold to O'Connor a one-third of the two-sevenths interest in and to the lease and bond in question, for the sum of $4,250, $3,000 of which was paid, leaving the balance for which this suit is brought to be paid as soon after June 15th following as the said O'Connor could determine that the interest he had purchased of Beck in said lease and bond was free and clear of all charges, incumbrances, liens, and assessments, of whatever nature or kind. Thereafter O'Connor, it is alleged, ascertained that there were incumbrances, liens, and assessments upon the interest and title to the lease and bond sold to him by the plaintiff amounting to a sum largely in excess of the amount sued for and notified the plaintiff thereof, and demanded that he remove said liens and incumbrances, or execute to him security to hold him harmless against such liens and assessments, and declined to pay the sum sued for, unless the plaintiff would remove such liens and assessments upon the interest purchased in the lease and bond, or give to him the indemnity demanded. The plaintiff refused either to discharge the liens and assessments against the interest in the lease and bond sold to the defendant O'Connor, or to indemnify him as demanded. After the commencement of this suit against O'Connor, O'Connor answered, setting up substantially the facts as aforesaid, and alleging that, in purchasing the interest in the lease and bond mentioned, he acted solely as the agent of defendant Cooper, disclaming any interest personally in the matter, and asking that Cooper be made a party to the suit. Thereupon the court made Cooper a defendant, who answered, setting up substantially the same facts as those contained in the answer of O'Connor, and asked judgment against the plaintiff for the sum of $3,000 and interest, which sum had been paid to the plaintiff for the interest in...