Equator Mining & Smelting Co. v. Guanella

• Decision Date: 19 June 1893
• Citation: 18 Colo. 548,33 P. 613
• Parties: EQUATOR MINING & SMELTING CO. v. GUANELLA et al.
• Court: Colorado Supreme Court

33 P. 613

18 Colo. 548

EQUATOR MINING & SMELTING CO. v. GUANELLA et al.

Supreme Court of Colorado

June 19, 1893

Appeal from district court, Clear Creek county.

Action by Thomas Guanella and others against the Equator Mining &amp Smelting Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by HAYT C.J.:

Appellees in the court below, recovered the sum of $833.20, as damages alleged to have resulted from a breach of contract of lease. The lease out of which the suit originated covered a portion of the Munsell lode mining claim, in Clear Creek county. This claim was at the time owned by appellant. It had upon it a tunnel 550 feet in length, and, at the breast of this tunnel a shaft 55 feet in depth. Appellees were to sink this shaft 125 feet below the 55 feet mentioned, and do other work, and, as a consideration, were to receive a percentage of the proceeds from the ore to be extracted. A lease was drawn up and signed for the Equator Mining Company, by its superintendent, and also by five of the six lessees. The concluding paragraph of the paper reads as follows: 'It is understood and agreed that this lease shall not be valid or binding upon said company until approved by the executive committee, said approval to be attested herein by the secretary of the company.' It was never approved as required. It provided, among other things, that appellant was 'to put in order the water pipe and air compressor.' The breach for which appellees were allowed damages in the court below arose out of the failure of appellant to put the water pipe and air compressor in order. Appellees contend that the agreement to put the water pipe and air compressor in order imposed upon appellant the duty of putting the same in a condition so that the air compressor would furnish sufficient power to run the engine which was to be used in hoisting material from the shaft, and also to run certain air drills which were to be used in mining. Appellant contends that it was only required to put the same in such condition as would furnish the necessary power to run the drills. At the trial, appellees, against the objection of appellant, were allowed to introduce oral evidence to show that, under an oral agreement with appellant, appellees were to excavate a chamber for the reception of the engine and hoister, and that the air compressor was to be in such order as that it would run the engine for the hoisting. The admission of this evidence is assigned for error. Appellant contends that the lease constitutes the sole and only contract between the parties, and that its terms cannot be varied by a contemporaneous oral agreement.

Carpenter & McBird, for appellant.

Morrison & Fillins, for appellees.

HAYT C.J., (after stating the facts.)

The lease, which appellees claim amounts only to a memorandum in writing, expressly provides that 'it should not be valid and binding upon said company until approved by the executive committee,' etc. This lease was not approved as required and it was not signed by all the lessees. Appellees contend that, while it is admissible as some evidence of the agreement between the parties, it is not the exclusive evidence of such agreement. Appellant, on the contrary, urges that it furnishes the only evidence of the agreement made by the parties, and that it cannot be changed or contradicted by oral evidence. Although the lease does not appear to have received the approval of the executive committee of the company, the company, having permitted appellees to commence work under the lease, and continue the same for more than three months, must be held to have waived the condition inserted solely for its benefit, requiring the approval of its executive committee. Likewise, the failure of one of the lessees to sign the instrument does not destroy its binding force and effect upon the lessees, they having all treated the same as a valid contract, by going into possession and prosecuting work under it. Milling Co. v. Donat, 10 Colo. 529, 16 P. 157. We agree with appellant that the rights of the parties under these circumstances must be determined upon the basis that the lease is binding as a written contract between the parties, and that...