Boyden v. United Mercury Mines Co.
| Decision Date | 22 May 1928 |
| Docket Number | 5007 |
| Citation | 267 P. 830,46 Idaho 303 |
| Parties | W. R. BOYDEN, PAUL G. SAVIC, BEN H. SMITH, Appellants, v. UNITED MERCURY MINES COMPANY, a Corporation, Respondent |
| Court | Idaho Supreme Court |
CONTRACTS-FOR SPECIFIC DEVICE-SUBSTANTIAL PERFORMANCE-COMMON COUNTS.
1. In action to recover on a contract to construct, set up and install a mercury ore reduction plant, evidence held to sustain finding of such lack of performance as to deprive plaintiffs of the right of recovery.
2. Plaintiffs, in action to recover on contract for construction and installation of ore reduction plant, not having alleged a cause of action on common counts, cannot be granted relief on such theory.
APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. B. S. Varian, Judge.
Action on contract. Judgment for defendant. Affirmed.
Judgment affirmed. Costs to respondent.
Fisher & Coffin, Chas. F. Reddoch and G. G. Adams, for Appellants.
If the owner or his representative was present and failed to notify the contractor of his failure to comply with the terms of his contract, the owner cannot complain. (Gate City Malt Co v. Stewart, 206 F. 448, 124 C. C. A. 354; Danville Bridge Co. v. Pomroy, 15 Pa. 151; Pauly Jail Bldg. & Mfg. Co. v. Hemphill County, 62 F. 698, 10 C. C. A. 595; Wade v. Haycock, 25 Pa. 382; Schaefer v. Gildea, 3 Colo. 15.)
Substantial performance of any contract is sufficient, and this is particularly true where the contractor furnishes the material that goes into the job as well as the required labor. (City of St. Charles v. Stockey (C. C. A.), 154 F 772; Omaha Water Co. v. Omaha (C. C. A.), 156 F. 922, 85 C. C. A. 54; German-Savings Inst. v. De La Vergne Refrigerating Machine Co., 70 F. 146, 17 C. C. A. 34; Elizabeth v. Elizabeth, 114 F. 547, 52 C. C. A. 321; Walsh Constr. Co. v. Cleveland, 279 F. 57; Coffin v. Black, 67 Ark. 219, 54 S.W. 212; Roseburr v. McDaniel, 147 Ark. 203, 227 S.W. 397; Thomas Haverty Co. v. Jones, 185 Cal. 285, 197 P. 105; Pinches v. Swedish Evangelical Lutheran Church, 55 Conn. 183, 10 A. 264; Daly v. New Haven Hotel Co., 91 Conn. 280, 99 A. 853.)
Hawley & Hawley, for Respondent.
The rule of substantial performance of a contract cannot be invoked by one who has not in good faith attempted to abide by its terms.
(a) The court found that the plaintiffs did not substantially perform their contract.
(b) Neither the lien nor the amended complaint supports the theory of substantial performance.
(c) The amended complaint is not drawn on the theory of substantial performance. (Fox v. Davidson, 36 A.D. 159, 55 N.Y.S. 524.)
(d) This was a new and untried machine and the rule of substantial performance does not apply. (Elgin v. Sheenberger, 59 Ill.App. 384; affirmed, 45 N.E. 434; Marchant v. Hayes, 117 Cal. 669, 49 P. 840; Schindler v. Green, 7 Cal. Unrep. 233, 82 P. 631; Perry v. Quackenbush, 105 Cal. 299, 38 P. 740; Crouch v. Gutman, 134 N.Y. 35, 31 N.E. 271; Fauble & Smith v. Davis, 48 Iowa 462; Easthampton Lumber & Coal Co. v. Worthington, 186 N.Y. 407, 79 N.E. 325; Franklin v. Schultz, 23 Mont. 165, 57 P. 1037; Spence v. Ham, 163 N.Y. 220, 57 N.E. 412, 51 L. R. A. 238; Van Clief v. Van Vechten, 130 N.Y. 571, 29 N.E. 1017; Golden Gate Lumber Co. v. Sahrbacher, 105 Cal. 114, 38 P. 635; Flannery v. Sahagian, 83 Hun, 109, 31 N.Y.S. 360; Robertson v. King, 55 Iowa 725, 8 N.W. 665; Boughton v. Smith, 142 N.Y. 674, 37 N.E. 470; Holister v. Mott, 132 N.Y. 18, 29 N.E. 1103; Anderson v. Todd, 8 N.D. 158, 77 N.W. 599; Clark v. Collier, 100 Cal. 256, 34 P. 677; note, 24 L. R. A., N. S., 341, and following, particularly commencing at 344; Gillespie Tool Co. v. Willson, 123 Pa. 19, 16 A. 36.)
W.R. Boyden contracted with the United Mercury Mines Company, a corporation, to construct, set up and install on the Hermes mining claim, belonging to respondents, a mercury ore reduction plant of approximately forty tons' capacity per day of not less than ninety per cent efficiency for the sum of $ 40,000 payable as follows: $ 15,000 by issuing 50,000 shares of capital stock of respondent to be delivered sixty days after the reduction plant should be installed. $ 25,000 by fifty per cent of the net proceeds of the sale of the mercury so produced, or by the delivery of quicksilver equal to that amount.
The plant was to be removed from another near-by mining claim. Respondents had the option either of so removing it or of paying $ 2,000 therefor. It elected the former. The contract expressly provided that except for the costs of transporting the plant, "all expenses of installing said plant and placing it in condition to successfully operate and treat ore" should be borne by W. R. Boyden and that the plant should be "so erected and installed without any cost or charge of any kind or character" to the respondent. W. R. Boyden was also to protect the respondent from liens for labor, etc.
It was further provided that Ben H. Smith, one of the appellants, should have charge of the installation and remain as superintendent as long as desired by respondent or until the $ 25,000 had been paid, his salary of $ 300 monthly to start when the respondent should begin the reduction of the mercury ore. It was further provided that a five per cent royalty of the gross proceeds should be paid in addition to but not until the $ 40,000 above mentioned had been paid; two and one-half per cent to Ben H. Smith and two and one-half per cent to Boyden,--Boyden having the opportunity to take his percentage in quicksilver.
Respondent was to furnish ore for continuous operation for six months, twenty-five tons per day, to average not less than one-half of one per cent of mercury. It was further provided in the contract that Ben H. Smith was the sole and exclusive owner of the patented process and the respondent was given the sole right to have other machines of the same kind operated or constructed in Valley county, Idaho, the sole charge therefor to be the five per cent royalty indicated above.
For the moment, passing over the history of the transaction culminating in the present action, suffice it to say that on October 29, 1924, Boyden assigned to Paul G. Savic a one-half interest in the consideration accruing to and belonging to him under the contract above mentioned, and later, on October 30th of the same year, gave a full and undivided interest of all his rights in said contract to the said Savic.
On March 30, 1926, Savic assigned sixty-seven and one-half per cent of his interest in the contract to Ben H. Smith. The consideration of the assignment from Boyden to Savic, dated October 29, 1924, shown in the record, was that Boyden might be relieved of the necessity of looking after the completion of the contract with respondent and that Savic should assume such duties. The only consideration expressed in the assignment of October 30th was that "there may well come a time when such a restricted interest might prevent your carrying to a successful issue any plans you might have in view." The consideration evidently expressed in the assignment from Savic to Smith was a rather extended agreement providing for co-operation in the foreclosure of the lien claimed in the present action to secure the payment of the $ 40,000 and certain liens claimed by Ben H. Smith against Savic and the respondent, for wages, etc., claimed by Ben H. Smith, and certain other laborers and lien claimants, interested in another lien suit but not herein, otherwise than by such purported assignment. Certain divisions of the proceeds that might be realized on were provided for as between Smith, Savic and their attorney.
The above explanation accounts for the parties appellant in this action (plaintiffs below). The action herein is to recover the purchase price agreed upon in the contract and to impress a lien therefor on the Hermes mining claim and the plant thereon on the theory that though the purchase price was to be paid in other than money, on respondent's refusal to pay, it became a money obligation. Such position is one of the disputed points in the action. The other principal contentions are:
Appellant claims that respondent so delayed the transportation of the plant as to materially retard and handicap the installation and setting up of the plant. The contract provided that respondent was to indicate where on the mining claim the machinery was to be placed and set up. There is a dispute as to whether the respondent, through its officers, pointed out where the plant was to be located or whether the location was determined upon by appellant Smith. There is also a controversy as to whether sufficient ore, and of the quality required by the contract, was delivered by the respondent. There are further disputes over the furnishing of wood for the operation and the furnishing of timber for the erection of the mill building to house the plant.
Appellant sought to show that respondent interfered with the progress of the work and hampered and hindered appellants in the installation and erection of the plant. The trial court was justified in finding to the contrary.
The chief contention, however, going to the merits of the case, was whether the contract was complied with by the appellants, it being claimed by them that they erected a machine of the kind contracted for and capable of doing the work required, which respondent denied.
The principal mechanism involved in the plant was a retort some twenty feet long, four and one-half feet wide and three feet high, in which there were three iron tables, supported on iron rods, one inch by two inches, over which a chain with lugs attached was caused to travel by means of a cog-wheel mechanism. The...
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