Bishop v. Averill

• Decision Date: 22 June 1897
• Citation: 17 Wash. 209,49 P. 237
• Parties: BISHOP v. AVERILL ET AL.
• Court: Washington Supreme Court

49 P. 237

17 Wash. 209

BISHOP v. AVERILL ET AL.

Supreme Court of Washington

June 22, 1897

Appeal from superior court, Spokane county; Wallace Mount, Judge.

Action by R. C. Bishop against G. W. Averill and another. Judgment on a verdict for defendants, and plaintiff appeals. Reversed.

Danson & Huneke, for appellant.

Wm. T Stoll, for respondents.

GORDON J.

This action was brought to recover the balance of a commission claimed by plaintiff for selling a certain mining property for defendants. The cause was tried before a jury, and the trial resulted in a verdict and judgment for the defendants. From the record it appears that in the spring of 1895 the defendants and one Banghart owned certain mining property in Montana known as the "Golden Cloud Mining Property," which they were desirous of selling, and for that purpose authorized the plaintiff and George Walker to sell the same for the purchase price of $75,000, and in consideration of their doing so agreed to pay them $10,000 as a commission for making the sale. Thereafter a purchaser was found by plaintiff and his associate, who entered into a written agreement with Banghart and the defendants of date April 8, 1895, under the terms of which, in consideration of $1,000, an option was given the other party to the agreement until April 15, 1895, to purchase the property at a price of $75,000, of which $10,000 was required to be paid on or before April 15, 1895, and, if so paid, the purchaser was to be entitled to the immediate possession of the property, and everything connected therewith. As a part of the same transaction, deeds of conveyance were executed and deposited with the Thomas Cruse Savings Bank of Helena, Mont., to be delivered to the purchaser on payment of the balance of the purchase price, to wit, $65,000. The agreement further provided that all payments were to be made through said bank. The purchaser was required to operate the mines continuously at his own expense until the purchase price was paid. It required the balance of the purchase price to be paid within three years after April 15, 1895. This balance was, under the terms of the agreement, to be paid "by deposits in the Thomas Cruse Savings Bank of Helena, Montana, to the credit of the said G. W. Averill, of thirty-five (35%) per cent. of the gross returns of the mines and mills hereinbefore described, until the full balance is paid; that is to say, that the thirty-five (35%) per cent. of the gross returns shall aggregate the full sum of sixty-five thousand dollars within three years from the date of delivery of possession." The agreement further provided that: "Unless the said party of the second part shall elect to pay the said sixty-five thousand dollars in cash, there shall be no obligation on his part to pay the same, unless such payment is made by the deposit of thirty-five per cent. of the gross returns as above described." And also: "Nothing herein contained shall be considered as obligating said party of the second part to pay said balance of sixty-five thousand dollars, except as the same is to be paid by means of the said thirty-five per cent. of the said gross returns; and in case such balance of sixty-five thousand dollars is not paid within the said three years from the date of such delivery as aforesaid, either by such election and payment in cash or by the deposits of thirty-five per cent. of the gross returns as aforesaid, then and in that event the said party of the second part is, at the end of the said three years, to surrender the said property, and the whole thereof, to the said parties of the first part in as good condition as reasonable use and wear thereof will permit." The closing clause of the agreement was as follows: "It is further provided that the terms and provisions of the within and foregoing contract shall apply to the successors and assigns of the parties thereto in the same manner as to the parties themselves, and time shall be of the essence hereof." The party of the second part named in this agreement was Eugene M. Sanger, who was in fact acting for and subsequently assigned all of his rights in and under the contract to, Abram T. Kerr, of the state of New York. Within the time fixed by the agreement, Kerr paid the sum of $10,000, and entered into possession of the property in accordance with the terms of the contract. At about that time Banghart assigned all of his interest in the contract to the respondents in this action (defendants below), who assumed Banghart's liability to the plaintiff and Walker for the commission, and Walker assigned to the appellant all his right and share in such commission. After Kerr had paid the $10,000, and gone into possession of the mining property the defendant G. W. Averill, acting on behalf of himself and wife, entered into a written agreement with appellant as to the manner in which the $10,000 commission was to be paid. The agreement refers to the contract of purchase, and recites that the said Bishop and Walker were to receive the sum of $10,000 commission for their services in that behalf. Continuing, it provides: "Now, therefore, these presents witnesseth that it is understood and agreed by and between the said party of the first part and said party of the second part that upon each deposit in the said Thomas Cruse Savings Bank by said Kerr after the first day of June, 1895, of the 35% specified in said contract [referring to the contract of purchase and sale above noticed] of the gross proceeds therein mentioned, the said Bishop shall be at once, and hereby is declared to be at once, entitled to 15.3% thereof; and the said Thomas Cruse Savings Bank, under and by virtue hereof, and upon a deposit of one of these agreements with it, is hereby authorized and directed to pay to the order of said Bishop said 15.3% of said sum so deposited by said Kerr under said agreement, this being intended to be an assignment and transfer by the said party of the first part to the said party of the second part of said 15.3% of said 35% as above set forth. It is further understood and agreed that if said Kerr, under the terms of said contract, shall see fit to pay up in any other manner the said balance of sixty-five thousand dollars, the purchase price of said property, that immediately upon the payment by him into said bank under the terms of said agreement, that the said party of the second part shall immediately thereon be entitled to said 15.3%, and the said Thomas Cruse Savings Bank is hereby directed and authorized to credit the same to the said party of the second part, and pay the same to his order, the same as above specified for the payment of said per cent. of the said 35%; and this agreement is to be binding and in full force and effect until the said sum of ten thousand dollars, and the whole thereof, has been paid to said party of the second part in the manner above set forth or otherwise; it being understood that said commission is not to be paid unless the same is deposited in said bank under said agreement by said Kerr or his assigns." Having gone into possession of the property, Kerr operated the mine continuously thereafter until June, 1896, during which time he expended about $50,000 in improving the property and constructing roads and in the erection of a mill. He also, from month to month, until November, 1895, regularly deposited to the credit of defendant in the bank mentioned in the agreement 35% of the gross output of the mines. The deposits so made aggregated about $4,000, and of the amount so deposited the appellant received his 15.3%, amounting to the sum of $562.96, which is the entire sum received by him on account of his commission. From November, 1895, until June, 1896, although Kerr continuously worked the mine, and there was during such time an output amounting in gross to nearly $17,000, he failed and neglected to make the deposit of 35% of such output to respondents' credit in the bank; but early in the month of June, and while still engaged in working the mine, Kerr, without the knowledge or consent of appellant herein, entered into an agreement with respondents, whereby, in consideration of the payment to them of $20,000 in cash, the respondents executed a quitclaim deed to the premises in question, and also directed the delivery of the deed of conveyance theretofore held in escrow by the bank, and hereinbefore referred to. Thereafter the present suit was instituted by the appellant.

His complaint sets out in full the various written agreements referred to herein, and in referring to the agreement between the defendants and Kerr last mentioned, which resulted in the execution and delivery of the quitclaim deed, the complaint contained the following allegation: "Ninth. That on, to wit, on or about the 8th day of June, 1896, the defendants,...