Christensen v. Pacific Coast Borax Co.

• Decision Date: 13 November 1894
• Parties: CHRISTENSEN v. PACIFIC COAST BORAX CO.
• Court: Oregon Supreme Court

38 P. 127

26 Or. 302

CHRISTENSEN v. PACIFIC COAST BORAX CO.

Supreme Court of Oregon

November 13, 1894

Appeal from circuit court, Curry county; J.C. Fullerton, Judge.

Action by James C. Christensen against the Pacific Coast Borax Company to recover damages for the breach of a mining contract. From a judgment in favor of plaintiff, defendant appeals. Reversed.

S.H. Hazard and Warren Gregory, for appellant.

W.R Willis, for respondent.

BEAN C.J.

This is an action to recover damages for the alleged breach of a written contract. Briefly, the facts are: That on the 1st day of April, 1891, the plaintiff and defendant made and entered into the following contract in writing:

"April the 1, 1891.

"I the under signed agree to mine on a pease of ground that has bin lade of for me by W.W. Gray for the Pacifick coast Boarx compna. I agree to mine out, clean, sack in oar house oar none as Borix of Lime on said ground for $23 twenty three dollars per ton. I agree also to timber eny ground that I work on said ground or cause to be worked. Said compna agrees to furnish a team to hall all neserly timber for mine and said oar to ware house. Said compny agrees not to deprive this contracter of his contract and give it to an other.

"Signed by contracter on this line

"J Christensen.

"Witnesses: Laura Gray.

"The Pacifick Coast Borix Compna,

"W W. Gray, Agent."

Sealed in the district of Chetco, Or.

Immediately thereafter plaintiff commenced work by running tunnels, timbering, constructing the necessary buildings for the operation of the mine, and in mining out and delivering to the defendant borate of lime, and continued so to work until about the 15th day of October, 1892, when the defendant, having concluded to shut down its mine and cease operations, notified him that he must cease work within 30 days, and that it would not receive or pay for any borate of lime mined by him after that time. In pursuance of this notice, plaintiff ceased work, and on the 16th day of August 1893, claiming that by the terms of the contract he had a right to mine out, and defendant was bound to receive and pay for, at the stipulated price, all the borate of lime to be found in the ground referred to in the contract, he commenced this action to recover $15,000 as damages for the loss of future profits he would have made had he been allowed to mine out all the ore in the ground so laid off for him. The trial court, having adopted the construction of the contract contended for by the plaintiff, a trial resulted in a verdict and judgment in his favor for the amount claimed, and defendant appeals.

The record contains numerous assignments of error, which have been ably presented and argued by counsel, but the assignment based upon the construction of the contract by the trial court is the only one necessary to consider at this time. It goes without saying that the agreement is inartificially drawn, and evidently not by a professional hand. In orthography, grammar, and arrangement it is certainly not a model, but yet it is the duty of the court to ascertain, if possible, from the language used, the intention of the parties, however imperfectly expressed. It certainly does not purport to be a lease to the plaintiff of the ground described therein, for a lease is a contract for the possession and profit of land by the lessee, and a recompense of rent or increase to the lessor, and is the grant of an estate in the land. No estate in or right to the possession or profit of the ground described therein is granted to the plaintiff by the contract under consideration, nor is any rent or recompense reserved to the defendant. Nor do we think it can be construed as a license, for a license is an authority to do some act or series of acts on the land of another for the benefit of the licensee, without passing any estate in the land; and when the license is to mine upon the land of another the right of property in the minerals when they are severed from the soil vests in the licensee. 15 Am. & Eng.Enc.Law, 594; Wheeler v. West, 71 Cal. 126, 11 P. 871. Now, in this case, the plaintiff was not authorized to mine on the land for his own benefit; nor did the ore when taken out, belong to him. As we view the contract, it is simply one of employment, under which plaintiff was to work or mine for the defendant, and as a compensation therefor to receive $23 a ton for all ore taken out by him and delivered in the warehouse of the company, and created the relation of employer and employé between the parties. The question, then, is whether, under the terms of the contract, the defendant had the right, upon reasonable notice, to terminate the arrangement into which the parties had entered, and to discharge the plaintiff from its employment. In its solution we are called upon to inquire what the stipulations of the contract between the parties were. To what did they agree? It is not a question as to what would have been a reasonable contract, nor what it may be supposed or conjectured the parties contemplated or anticipated when it was entered into, nor whether they contracted on the supposition that the business would be carried on until all the ore in the land described had been taken out. The only question is, what was the intent of the parties, as gathered from the language used, and to what did they bind themselves? We cannot make a contract for them, or add to any of the stipulations or terms of the agreement into which they have entered, nor can we give to a mere expectation or anticipation the binding force of a covenant. While a court, in construing a contract, may take into consideration the situation of the parties, the object they must...