Croup v. Humboldt Quartz & Placer Mining Co.

• Decision Date: 13 September 1915
• Docket Number: 12704.
• Citation: 87 Wash. 248,151 P. 493
• Court: Washington Supreme Court
• Parties: CROUP v. HUMBOLDT QUARTZ & PLACER MINING CO. et al.

151 P. 493

87 Wash. 248

CROUP v. HUMBOLDT QUARTZ & PLACER MINING CO. et al.

No. 12704.

Supreme Court of Washington

September 13, 1915

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by E. W. Croup against the Humboldt Quartz & Placer Mining Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

John C. Hurspool and W. F. Crowe, both of Walla Walla, for appellant.

P. W Kimball, of Spokane, for respondents.

HOLCOMB J.

This is an action to recover $3,000 principal and the stipulated interest upon a promissory note given by respondents to appellant. The defense was that the note was given as the second installment of the purchase price for the sale of a group of mining claims by appellant to respondents; that the sale contract made time of its essence, and provided for a forfeiture in the event of a failure to pay any installment of the purchase price when due; that on the nonpayment of this note when it fell due appellant did declare a forfeiture, and thereby relieve respondents from all liability on the note. In reply to this appellant claims that, while a written notice of forfeiture was given by him he at the same time, and as part of the notice, informed respondents that he would not insist on the forfeiture, and that thereafter they retained possession of the mining claims under the contract and both parties recognized the contract as in force. The trial court, after hearing the evidence made findings in favor of respondents, and entered judgment in their favor.

The third finding was that the notice of forfeiture had been given in writing by appellant to one C. U. Ridgway, who was a member and officer of the company, and the seventh finding was to the same effect, and contained this further finding:

'That at the time of the delivery of said written notice plaintiff informed the said C. U. Ridgway that, if payment of the note was made within two or three weeks, the forfeiture would not be insisted on, and that plaintiff would perform the agreement upon the payment of said note and the subsequent payments as they fell due.'

Appellant maintains that upon this finding judgment should have been granted him for that the forfeiture, if declared, was immediately waived, of which respondent must be presumed to have had notice through its officer, Ridgway, and that, whether bound by notice thereof to Ridgway, such notice of waiver was unnecessary. There is bare support for the above finding upon the testimony of appellant alone. On the other hand, there is testimony that, although appellant was at the office of the company and talked to its secretary and keeper of its records and files on the same day that he served the notice, he did not give the same information of waiver to the secretary, and he gave the notice of repudiation and forfeiture to Ridgway outside the door of the secretary. Appellant had previously informed the secretary that he repudiated the contract because of material alterations in it without his authority after he had signed it. His written notice also contained the same notice, in addition to the declaration of forfeiture because of nonpayment. He asserted that as to him the contract was both invalid and forfeited. There had been a notice in writing dated January 10, 1913, to respondents, from Mr. Crowe, appellant's attorney, in his transactions concerning the mining claims, that the note now in action was in his hands, and that he claimed a lien upon it for his services and expenses in the sum of $500. There had been a notice in writing to respondents on May 25, 1913, from appellant, not to pay the note to Mr. Crowe. At the time of the last-mentioned notice the respondents were preparing to pay the note, but suspended payment thereof until it could be ascertained who was entitled thereto. On June 1st the note fell due. On June 3d appellant served his notice of...