Garbutt v. Blanding Mines Co.
| Decision Date | 21 March 1944 |
| Docket Number | No. 2836.,2836. |
| Citation | 141 F.2d 679 |
| Parties | GARBUTT v. BLANDING MINES CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Knox Patterson and Charles M. Morris, both of Salt Lake City, Utah, for appellant.
Mahlon E. Wilson, of Salt Lake City, Utah, and Mitchell Melich, of Moab, Utah, for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
The appellant, Frank A. Garbutt, as the owner of a controlling interest in certain mining claims in the State of Utah, brought this suit against appellee, Blanding Mines Company, to recover damages on account of the alleged failure of appellee to core drill, develop and mine the property, and to construct a mill thereon, in accordance with the provisions of a contract between Garbutt and the assignors of appellee. The trial court dismissed the action, and the sole question here is whether the second amended complaint states a claim on which relief can be granted. Rule 12(b) (6), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The test is "whether in the light most favorable to the plaintiff, and with every intendment regarded in his favor, the complaint is sufficient to constitute a valid claim." Tahir Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865, 869. See also Leimer v. State Mut. Life Assur. Co., 8 Cir., 108 F.2d 302; Continental Collieries v. Shober, 3 Cir., 130 F. 2d 631; Galbreath v. Metropolitan Trust Co., 9 Cir., 134 F.2d 569.
The complaint, as amended, pleads the contract dated April 1, 1940, which pertinently recites that the contracting parties had been previously associated in the operation of the mining property, from which they had produced and sold approximately $20,000 worth of vanadium products; that the parties were desirous of entering into a contract, by the terms of which Bigler, Milenski and Kimmerle, as parties of the second part, would acquire the right to operate the mining property without "unduly large and continuing commitments"; that Garbutt, party of the first part, would be free from liability in connection with the operation of the property, and would receive a fair proportion of the returns in the event the property became productively valuable.
Accordingly, it was agreed that the parties of the second part would forthwith cause to be organized the appellee corporation (Blanding Mines Company), which as assignee of the contract was to have sole and exclusive possession of the property for the purpose of developing, mining, and marketing the products of the mines. Second parties agreed that as soon as weather conditions permitted, they would "undertake to explore and develop continuously and in good faith ore, and agree to purchase a core drilling machine and to do such amount of core drilling as they deem necessary to assure themselves as to whether they desire to continue with or abandon this agreement". If the second parties elected to abandon the contract and the property, they were to forthwith notify Garbutt in writing and furnish him with a correct record of the results of their core drilling in the event ore was "developed in sufficient quantities in the opinion of the parties of the second part to justify the erection of a mill", they agreed to "commence" the construction of one at or near the property with a minimum capacity of twenty tons per twenty-four hours. Garbutt was to receive a stipulated amount of the gross receipts in lieu of royalty, and was authorized to terminate the contract upon certain stipulated conditions.
In the event a dispute arose under the contract, it was agreed that the same would be settled by arbitration, and it was further provided that should either party fail, refuse, or neglect to perform any act, or comply with any condition thereof, the other party could terminate it by notice in writing to that effect, provided however that before such notice, the aggrieved party would notify the other of the default complained of, setting forth the details thereof; and should the defaulting party cure such complaint within thirty days after such notice, and continue in good faith and with due diligence to cure same, then the cause for termination should be deemed to have been removed.
It is alleged that on May 4, 1942, Garbutt, by written instrument, sold, assigned, and transferred his right, title and interest in and to the contract to the Vanadium Corporation of America, "reserving, however, unto himself the right to receive and collect from the defendants all royalties, benefits and claims...
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...he relies to establish his claim. Rule 8(a) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c; Garbutt v. Blanding Mines, 10 Cir., 141 F.2d 679; Pliner v. Nesvig, D. C., 42 F.Supp. 297. Cf. Mumm v. Jacob E. Decker and Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983. M......
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...thereof to the complaint, plaintiff's right to recover is measured by the terms and conditions of that agreement. Garbutt v. Blanding Mines Co., (10th Cir., 1944), 141 F.2d 679. The contract, in this instance, is one between the employer and the union as sole bargaining representative for a......
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