Gates Iron Works v. Cohen

• Decision Date: 13 January 1896
• Citation: 43 P. 667,7 Colo.App. 341
• Parties: GATES IRON WORKS v. COHEN. [1]
• Court: Colorado Court of Appeals

43 P. 667

7 Colo.App. 341

GATES IRON WORKS v. COHEN. ^[1]

Court of Appeals of Colorado

January 13, 1896

Appeal from district court, Park county.

Action by Samuel Cohen against the Emmons Mining Company. The Gates Iron Works intervened, and from a judgment for plaintiff intervener appeals. Reversed.

T.J O'Donnell and W.S. Decker, for appellant.

R.D Thompson and C.A. Wilkin, for appellee.

THOMSON J.

On the 24th day of October, 1891, the Gates Iron Works and the Emmons Mining Company entered into an agreement in writing as follows: "This agreement, made and entered into at the city of Denver, county of Arapahoe and state of Colorado this 24th day of October, A.D.1891, between the Gates Iron Works, a corporation of the state of Illinois, doing business at the city of Chicago, in said state, party of the first part, and the Emmons Mining Company, a corporation of the state of Colorado, having an office in the city of Denver, in said state, party of the second part witnesseth: That the party of the first part agrees to furnish the machinery for a concentrating plant, having capacity of fifty (50) tons in twenty-four (24) hours, for the sum of twelve thousand five hundred ($12,500) dollars, f.o.b. Chicago; said sum to include also the services of a man to superintend the erection and starting of the plant. The items of machinery to be furnished under this agreement are as follows: 1 No. 2 Gates rock breaker; 1 chain ore drier; 1 set Gates improved Cornish rolls, with lathe; 1 set extra shells for above rolls; 1 sizer, 80 mesh; 5 Card concentrators; 10 Gates wet slime concentrators; 2 40 horse power half arch front standard tubular boilers; 1 50 horse power stationary engine, for crusher, etc.; 1 20 horse power detached portable engine, for concentrators; feed-water pump, heater, piping, shafting, hangers, pulleys, belting, etc., to make a complete plant. That the party of the first part also agrees to furnish full plans and specifications for the mill. That the party of the first part guaranties to save eighty (80) per cent. of all the concentrating values in the ore in the shape of galena, argentiferous galena, iron and copper pyrites, native silver, native gold, and any mineral or metal which is possible of concentration, wet or dry, by any machine; it being understood that the ore is to be treated as a concentrating problem, and in no sense as a free milling proposition. That the party of the second part agrees to pay the said sum of twelve thousand five hundred dollars ($12,500) in cash when the plant is completed and successfully fulfilling the conditions of the above guaranty, and further agrees, when the order is given, to put up as security in escrow a sufficient amount of the stock of the Emmons Mining Company, at 45 cents per share, as earnest to secure the payment as above. The party of the first part is to ship the machinery in its own name, and to hold possession of same until payment of cash, as above provided; and if the said party shall fail to make the payment in cash, as above provided, upon said conditions, then said first party shall have the right to sell the stock put up as security in the market, and apply the proceeds on its claim. That the party of the second part agrees to push the construction of the mill as rapidly as possible, and to use every reasonable effort to complete the work as per accepted plans. The party of the second part further agrees to furnish the ore as soon as the plant is completed, so that the tests can be made. Executed in duplicate. Witness the signatures of W.L. Card, for the Gates Iron Works, of Chicago, as per their written authority, and of the president of the Emmons Mining Company, attested by the secretary thereof, under their corporate seal. Gates Iron Works, by W.L. Card, Agent. Attest: F.R. Miller, Secretary. The Emmons Mining Co., by George F. Batchelder, President. [ Seal.]" Afterwards, on the 16th day of December, 1891, the parties entered into a supplementary agreement, which, after reciting an experiment made upon the ore of the mining company by W.L. Card, the agent of the iron works, resulting, as Card reported, in a saving of 91 per cent. of concentrating values, contained the following provisions: "It is therefore understood and agreed that the method used by Mr. W.L. Card, in his foregoing report of the test, to show a saving of ninety-one per cent. of all values in said ore which are possible of concentration, shall be used in determining whether said contemplated mill fulfills the condition of saving eighty per cent. of such values; and if said mill shall reduce and concentrate fifty (50) tons (of 2,000 pounds) of said ore per day (twenty-four hours), and shall save eighty per cent. of the values, to be determined by said agreed upon method, then it shall be considered to have fulfilled the conditions of the attached agreement, and the twelve thousand five hundred ($12,500) dollars therein named shall be due and payable at once."

The shipments of the machinery commenced in the summer of 1892 and continued until the following October or November. It was put in place under the supervision of David Cole, an agent of the iron works. It was placed in a building belonging to the company, upon the company's land; and, although not attached to the walls of the building, it, together with its framework of heavy timbers, rested on, and was fastened to, a foundation of solid masonry, constructed for the purpose. This manner of placing it was necessary to enable it to undergo the tests to which it was to be subjected. After the concentrating mill was completed, and had been, at least, partly tested, Samuel Cohen, the appellee, brought suit against the company, in which he caused a writ of attachment to be issued and levied upon the machinery, and also upon the land on which the machinery stood. The iron works intervened, claiming the ownership and right of possession of the machinery, and praying judgment accordingly. The answer of the plaintiff put in issue the material allegations of the petition, averred a want of compliance by the intervener with the provisions of our statute prescribing the conditions upon which foreign corporations are authorized to do business in this state, and alleged that the machinery was attached to the land and buildings in such manner as to constitute it part of the realty, so that it was embraced in the levy upon the land, and the intervener was precluded from claiming it as personal property. The evidence was that, after the completion of the mill, some tests were made. The largest quantity of ore handled in 24 hours was 31 tons. What percentage of the ore values was saved was not shown, but the undisputed evidence was that it did not nearly reach the requirements of the agreement. The mill was used for no other purpose than that of making these tests. It was never accepted by the mining company, and, at the time of the levy, the final test to determine its ability to perform the work for which it was intended had not yet been made. The mill was insured during the whole time in the name of the intervener, and was most of the time in charge of its agent. The plaintiff testified that, when the attachment was levied, he had no knowledge of the contracts between the intervener and the company; but he also testified that, prior to his attachment, he had conversations with Mr. Cole, the intervener's agent, and Mr. Webber, the company's superintendent, on the subject of the ability of the mill to treat the ore, in which he was possibly told, but did not recollect whether he was or not,...