Durant v. Comegys

• Decision Date: 18 December 1891
• Citation: 28 P. 425,3 Idaho 204
• Parties: DURANT ET AL. v. COMEGYS ET AL
• Court: Idaho Supreme Court

28 P. 425

3 Idaho 204

DURANT ET AL. v. COMEGYS ET AL

Supreme Court of Idaho

December 18, 1891

TIME ESSENCE OF CONTRACT-CONTROLLED BY CIRCUMSTANCES.-Though time may be expressly made of the essence of a contract, or may appear to be so from the circumstances of the case, and laches a bar to a specific performance, yet, generally, time is not so treated by a court of equity, in the absence of negligent delay, or delay unaccounted for.

CONTRACTS FOR PURCHASE OF MINING PROPERTY, TIME IS THE ESSENCE OF.-The rule that time is of the essence of the contract is especially applicable to contracts for the purchase and sale of mining properties.

SPECIFIC PERFORMANCE-WHERE TIME IS NOT OF THE ESSENCE OF CONTRACT.-In cases where specific performance is demanded on the ground that time was not of the essence of the contract, the court demands that the party shall make out a case free from doubt and to show that the relief asked for is under all the circumstances of the case equitable, and to account in a reasonable manner for his delay and apparent omissions.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed, with costs.

W. T Stoll and McBride & Allen, for Appellants.

Time is generally not of the essence of the contract, and the purchaser does not forfeit his right of purchase by neglect to pay at the day. (Wells v. Wells, 3 Ired. Eq. 596; Runnels v. Jackson, 1 How. (Miss.) 358; Brashier v. Gratz, 6 Wheat. 533; Hepburn v. Auld, 5 Cranch, 270; Taylor v. Longworth, 14 Pet. 174; Willard v. Tayloe, 8 Wall. 557.) It is not necessary to enable a party to specifically enforce a contract that the other could do the same thing. While usually a contract must be such that the whole of it can be enforced, a party entitled to have it enforced may waive any defect or provision in his favor, and accept what he could not be forced to take. (Waters v. Travis, 9 Johns. 460.)

Woods &amp Heyburn, for Respondents.

Where the time of payment by the vendee is made essential, the vendee must make an actual tender of the price, and a demand of the deed, at the specified time. (Duffy v. O'Donovan, 46 N.Y. 228; Gale v. Archer, 42 Barb. 320; Wells v. Smith, 2 Edw. Ch. 78; Kimball v. Tooke, 70 Ill. 553; Phelps v. Railroad Co., 63 Ill. 468; Heuer v. Rutkowski, 18 Mo. 216.) Where a party has no right of action at law, equity will not interfere to enforce a contract unless there have been some circumstances of fraud, mistake, etc. (Allen v. Beal, 3 A. K. Marsh. 554, 13 Am. Dec. 203; Tevis v. Richardson, 7 T. B. Mon. 654; Buckmaster v. Grundy, 8 Ill. 628; Marston v. Humphrey, 24 Me. 514.) There must be a mutuality of contract before it can be enforced by a court of equity. (King v. Ruchman, 20 N. J. Eq. 316.)

SULLIVAN, C. J. Huston and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action brought to compel the specific performance of a contract to convey a two-thirds interest in a mining claim. The amended complaint is as follows:

"[Title of Court and Cause.]

"Come now the plaintiffs above named, and by leave of the court first had and obtained, file this their amended complaint and allege: 1. That the plaintiffs now are, and during all the times hereinafter mentioned were, citizens of the United States over the age of twenty-one years. 2. That prior to and at the time of the making and delivery of the agreements hereinafter mentioned the defendants George Comegys, Lake D. Wolfard, and Samuel B. Morgan represented and stated to the plaintiffs that they, the said Comegys, Wolfard, and Samuel B. Morgan, were the sole owners of that certain lode mining claim known as and called the 'Tuscumbia lode,' situated on Goat mountain, in Beaver mining district, county of Shoshone and territory of Idaho, and being fifteen hundred (1,500) feet in length and six hundred (600) feet in width, and lying between the Tough Nut mine on the west and the Sitting Bull and Parrott mines on the east, as the same was located and marked upon the ground, and being the same mining claim located on the twentieth day of August, 1883, by William Sutherland, Charles W. Toole, and the defendant Samuel B. Morgan. 3. That heretofore, to wit, on the sixth day of March, 1888, the said defendants George Comegys, Lake D. Wolfard and Samuel B. Morgan, for a valuable consideration, made and entered into an agreement in writing to and with the plaintiffs, a copy of which agreement is hereto attached, and marked exhibit 'A,' and hereby made a part of this complaint; and that the 'Tuscumbia mine,' mentioned in said agreement, was the same lode mining claim heretofore described as the 'Tuscumbia lode' mining claim, and none other; and that at the time of making of said agreement the plaintiffs believed said statements and representations of said defendants Comegys, Wolfard, and Morgan, to the effect that they were the sole owners of said mining claim, and that, relying upon said statements and representations, and believing the same to be true, plaintiffs entered into said agreement. 4. That immediately after the making and entering into said agreement as aforesaid, and still relying upon said statements and representations, and believing the same to be true, and under and in pursuance of said agreement, and in performance of the terms and conditions of said agreement on their part, the plaintiffs in good faith entered into the possession of said mining claim, and commenced the work of prospecting and developing of said mining claim, and thereafter continued the said work of prospecting and developing of the said mining claim in a judicious manner, and in the manner for the best development thereof, and in so doing the plaintiff expended on said mine in such work more than five hundred ($ 500) dollars per month, until they had expended therein and in such work more than the sum of five thousand ($ 5,000) dollars, and that by such work and expenditure the said mining claim was developed from a mere prospect of but small value into a mine worth many thousands of dollars, and that plaintiffs have ever since continued to be, and are now, in possession of said premises. 5. That afterward, to wit, on the first day of September, 1888, the plaintiffs elected to purchase the said two-thirds interest in said mining claim, and to form a corporation to own and work said mining claim, as provided in said agreement they might do, and notified said defendants Comegys, Wolfard, and Morgan of such election, and that said defendants Comegys, Wolfard, and Morgan, for a valuable consideration, entered into a supplemental agreement to and with the plaintiffs, whereby and by the terms whereof they agreed with plaintiffs that the plaintiffs should have until the first day of October, 1888, in which to elect to purchase the two-thirds interest in said mining claim mentioned in said agreement of March 6, 1888, and that time for making the payment of the sum of three thousand ($ 3,000) dollars therein [mentioned] should also be extended until said first day of October, 1888. 6. That said defendants Comegys, Wolfard, and Morgan were not at the time of making of said statements and representations and agreement of March 6, 1888, the sole owners of said Tuscumbia lode mining claim, as stated and represented by them as aforesaid, but, on the contrary, only held the title to an undivided fifty-sixtieths (50-60) thereof; and that the other undivided ten-sixtieths (10-60) thereof was owned by one Elgin Wilcox and one Charles W. Toole. That after the making of said agreement, to wit, on the fourth day of May, 1888, in a certain action then pending in the district court of said Shoshone county, wherein Charles W. Toole was plaintiff, and the defendant herein, Samuel B. Morgan, was defendant, a writ of attachment duly issued out of said court, and all of the right, title, and interest of the said Samuel B. Morgan in and to said mining claim was duly levied upon and attached by the sheriff of said county, as security for the payment of the sum of seven hundred and fifty ($ 750) dollars, then due and owing from said Morgan to the said Toole, which said attachment became and remained a lien upon said Morgan's interest in said mining claim from the said date of the levy of said attachment until long after the said first day of October, 1888. And that on said first day of October, 1888, there was also pending in the district court of said county a certain action wherein Charles W. Toole and Elgin Wilcox and the defendant Samuel B. Morgan were plaintiffs, and the said defendants Comegys and Wolfard were defendants, in which action notice of the pendency thereof was duly filed in the office of the county recorder of said county, which action was brought for the purpose of obtaining a decree of said court setting aside and declaring void a certain deed, dated November 29, 1886, from William Sutherland to said defendants Comegys and Wolfard, and adjudging and decreeing the [said] Charles W. Toole and Elgin Wilcox to be the owners of an undivided one-sixth interest in said mining claim, and which said deed so sought to be set aside was a deed from said William Sutherland, one of the locators of said mining claim, to said Comegys and Wolford, and was part of the claim of title to said mining claim. That said last-mentioned action remained pending and undetermined in said court until the fourth day of June, 1889; and that on that day the said Comegys and Wolfard, without notice to the plaintiffs herein, and without their knowledge or consent, conveyed to said Elgin Wilcox and Charles W. Toole an undivided one-sixth interest in said mining claim. 7. That, after the first day of October, 1888, and prior to the fourth day of June, 1889, to wit, on the twenty-second day of May, 1889, the defendant Samuel B....