Hare Mining & Milling Co. v. Keys

• Decision Date: 14 September 1926
• Docket Number: Case Number: 16951
• Citation: 1926 OK 696,120 Okla. 217,251 P. 77
• Parties: HARE MINING & MILLING CO. v. KEYS et al.
• Court: Oklahoma Supreme Court

1926 OK 696

251 P. 77

120 Okla. 217

HARE MINING & MILLING CO. v. KEYS et al.

Case Number: 16951

Supreme Court of Oklahoma

Decided: September 14, 1926

Syllabus

¶0 1. Judgment--Res Judicata--Matters Which Might Have Been Presented in Former Action Between Same Parties.

When the second suit is between the same parties or their privies, and upon the same cause of action as a prior suit, the judgment in the first suit is an adjudication, not only as to every question, issue, and fact which was presented, but also upon those which might have been presented, in the first suit.

2. Election of Remedies--Effect.

When one has two remedies proceeding upon opposite and irreconcilable claims of right, the one adopted excludes the other.

J. G. Austin, for plaintiff in error.

Geo. T. Webster, E. C. Fitzgerald, and Dick Rice, for defendants in error.

PINKHAM, C.

¶1 The plaintiff in error, the Hare Mining & Milling Company, a corporation, on the 22nd day of May, 1919, entered into a certain written contract with J. W. Keys, V. V. Grant, J.

¶2 K. Moore, and S. Walker, defendants in error, to convey to them for the sum of $ 100,000 a certain zinc mining lease, concentrating plant and equipment, located in Ottawa county.

¶3 The defendants in error paid to the plaintiff in error at the time of the execution of the contract $ 15,000, and were permitted to enter into possession of said lease and to operate the mill and machinery thereon, rendering to plaintiff in error certain agreed royalties, and were to have the option to purchase within six months for an additional $ 85,000 to be paid at stated times, with interest. There was paid plaintiff in error on the purchase price of said property from time to time $ 71,829.95. Upon the defendants in error's default in the balance called for by the contract, the plaintiff in error instituted this action against the defendants in error, asking for judgment against them jointly and severally for the sum of $ 17,643.50, with interest, claiming the said sum to be due under the said contract.

¶4 The parties will be referred to as plaintiff and defendant, as they appeared in the trial court.

¶5 The defendants in their answer denied generally the allegations of plaintiff's amended petition; admitted the execution and delivery of certain contracts attached thereto; and that there was default on their part in the payment of the purchase price; and admitted the right of plaintiff to forfeit and cancel the contract and re-enter and take possession of the premises as provided by the terms of the contract; but alleged that the rights of both plaintiff and defendants were fully adjudicated in another action, No. 4229, in the lower court, entitled W. S. O'Bannon v. Niangua Mining & Royalty Company. Defendants further alleged that the plaintiff, acting by its attorney, in open court in the trial of cause No. 4229, waived whatever right, if any, it had, to a personal judgment against the defendants. Plaintiff's reply consisted of a general denial.

¶6 The cause was tried to the court without the intervention of a jury, and at the close of all the evidence the court made findings of fact and concluded as a matter of law that the plaintiff was entitled to no relief in the instant action, and judgment was entered against the plaintiff and in favor of the defendants. To all of the findings of fact and conclusions of law and to the judgment entered the plaintiff excepted. Plaintiff motion for a new trial was overruled, exception taken, and plaintiff has duly appealed to this court by petition in error and case-made attached for review.

¶7 The principal proposition presented and discussed by plaintiff is that the court's conclusion of law, to the effect that by reason of the evidence adduced on the trial and from the facts found by the court the plaintiff was estopped and barred from recovering in this action, is clearly erroneous, and that the case should be remanded with instructions to enter a judgment for plaintiff and against defendants for the amount claimed. It becomes therefore necessary to briefly review the material facts, concerning which there is little, if any, dispute.

¶8 The contract of May 22, 1919, under which defendants took possession of the lease in question, was in substance an option contract giving to defendants the right to purchase from the plaintiff a certain mining lease and mill upon the land in said contract described. A copy of this contract was attached to plaintiff's amended petition. This contract provides, among other things:

"It is further agreed between the parties hereto that in case the said second parties (defendants herein) shall elect to purchase the rights of the first party (plaintiff herein) in and to said mining lease within the said period of six months, but shall fail to make the payments hereinbefore provided at the time and in the manner specified, with interest thereon, that such failure shall give the first party the right to declare this agreement at an end and to at once reenter upon said lands and take possession of said lease and mill and mining properties and appliances; all sums theretofore paid, if any, as part of the purchase price for said lease being kept and retained by said first party or its assigns, and neither party shall be further bound under this agreement."

¶9 By another clause of the contract of May 22, 1919, it was provided:

"That the rights granted by first party (Hare Mining & Milling Company) to the second parties herein (defendants herein) during the said six months' period shall not be assignable without the written consent of the first party; but that if said second parties shall elect to purchase the rights of said first party under said mining lease, and shall have made payment of $ 10,000 thereunder, after first payment, that then the rights of the second parties hereunder shall be assignable."

¶10 After the defendants had taken possession of the property in question, and on the 16th day of July, 1919, a contract in writing was entered into between the defendants and the Niangua Mining & Royalty Company, a corporation, which contract was in effect an option to purchase said mining property by the Niangua Mining & Royalty Company from defendants, and on July 22, 1919, a supplementary contract in writing was entered into between the Niangua Company and the defendants concerning the property in question, making certain changes and modifications in and of the terms and provisions of the former contract of July 16, 1919, between the Niangua Company and the defendants.

¶11 The evidence discloses that these last mentioned contracts were acquiesced in by the plaintiff, Hare Mining & Milling Company, with knowledge on its part.

¶12 The president of the plaintiff, Hare Mining & Milling Company, testified that the defendants informed him that they had sold the property to the Niangua Mining & Royalty Company, and that he agreed to a modification of the payments and to a reduction of the payments due the plaintiff company, in order to favor the defendants, and on August 14, 1919, the plaintiff company and the defendants entered into a supplementary contract in writing concerning said property therein, and thereby amending and modifying certain conditions and terms of the original contract of May 22, 1919, between the plaintiff company and the defendants.

¶13 This contract of August 14, 1919, after referring to the contract of May 22, 1919, recites that on July 16, 1919, the defendants entered into an agreement with the Niangua Mining & Royalty Company for sale of the property in question to it, and further recites the payments to be made by Niangua Mining & Royalty Company, and that the defendants exercised their option granted by contract of May 22, 1919, and have paid the sum of $ 25,000 to plaintiff, leaving a balance of $ 75,000, less certain royalties.

¶14 It sufficiently appears from the testimony that the defendants entered upon the property in question, and under the contract of May 22, 1919, and in a short time thereafter interested the Niangua Mining & Royalty Company and exercised their option of purchase from the plaintiff and entered into the supplemental contract with plaintiff, the object and purpose of which was to modify the original contract of May 22, 1919, to conform to the defendants' contract with the Niangua Company.

¶15 During all of this time payments were made to the plaintiff until there was paid it the sum of $ 71,829.95. The evidence further shows that the Niangua Company paid to defendants under their contract of July 16, 1919, about the sum of $ 120,000 of the agreed purchase price of $ 150,000. It further appears from the evidence that the Niangua Company began having difficulty in meeting its payments in August, 1920, and that defendants thereby defaulted in their payments to the plaintiff company.

¶16 It further appears that on or about the 5th day of August, 1920, W. S. O'Bannon filed his application as a stockholder, and on behalf of other creditors of the Niangua Company asking for a receiver. A receiver was appointed and directed to take possession of the property optioned by plaintiff to defendants, and in turn optioned by defendants to the Niangua Company. Insolvency and inability to pay its debts were the grounds urged by W. S. O'Bannon and conceded by the Niangua Company.

¶17 After the receiver was appointed by the district court of Ottawa county, and on the 30th day of October, 1920, the defendants gave the receiver and the Niangua Company notice that their rights under the contract under which that company claimed title were...