Hutchens v. Sutherland

• Decision Date: 31 May 1895
• Docket Number: 1,423.
• Citation: 40 P. 409,22 Nev. 363
• Parties: HUTCHENS v. SUTHERLAND.
• Court: Nevada Supreme Court

40 P. 409

22 Nev. 363

HUTCHENS v. SUTHERLAND.

No. 1,423.

Supreme Court of Nevada

May 31, 1895

Syllabus by Bigelow, C.J.

1. Whether a contract is entire or separable into several distinct and independent contracts is a question of intention of the parties, to be ascertained from the language employed and the subject-matter of the contract.

2. Where a contract, although contained in the same instrument is severable into distinct and independent contracts, a breach of one of these contracts does not constitute a breach of others.

3. Where a complaint upon a contract does not show a breach of the contract by the defendant, it fails to state facts sufficient to constitute a cause of action.

4. The defendant purchased mining property from the plaintiff, for which he agreed to pay him a certain proportion of the net proceeds of the mines, and also to employ him as superintendent, at a salary payable monthly. Held that these contracts were separable, and that the discharge of the plaintiff, though wrongful, constituted no breach of the contract concerning the net proceeds.

Appeal from district court, Humboldt county; A. E. Cheney, Judge.

Action on a contract by H. H. Hutchens against James Sutherland. Plaintiff had judgment for a part of his claim, and from a judgment of nonsuit as to the balance he appeals. Affirmed.

Curler & Curler and Thomas E. Haydon, for appellant.

M. S Bonnifield and S. J. Bonnifield, for respondent.

BIGELOW C.J.

On the 13th day of March, 1891, the plaintiff sold the defendant several mining claims, together with other real and personal property, for a consideration of $10,000 paid, and 50 per cent. of the net proceeds of the mines, until the sum of $20,000 more should be paid him. An instrument in writing was drawn up to this effect, in which it was stated that it was distinctly understood and agreed that the $20,000 were not to be paid until there were net proceeds, and then only out of 50 per cent. of such net proceeds. The instrument also contained a provision that the plaintiff should finish a smelting furnace, then partly erected upon the property, or, if he did not, the defendant might complete it, and retain the expense of so doing out of any moneys thereafter to become due plaintiff. Also that, if defendant should be dispossessed from any of the mining claims, he could retain $2,000 for each claim so taken from him. On March 20th another writing was entered into, whereby the plaintiff agreed to act as superintendent of the mining operations to be carried on upon the property, "said services to commence April 1, 1891, and to continue for such time as may be required to complete the payment in full of the purchase price for said property, and for such longer time as may be agreed upon if so desired. In consideration of the above, said Sutherland hereby agrees to pay said Hutchens the sum of one hundred dollars per month, payable monthly, for said services." The plaintiff testifies that this was a part of the original agreement made for the sale of the mines, but was left out of the first instrument by a mistake, and we shall consider the case upon the theory that such is the fact. Mining operations were begun and carried on under the superintendency of the plaintiff until December, 1892, when he was virtually superseded as superintendent by an agent of plaintiff, who continued the mining until some time in March, 1893. On March 17, 1893, the plaintiff was discharged, and he commenced this action on April 5, 1893. He sues for $20,000, balance due on the sale, and for six months' services as superintendent, for which he had not been paid. He obtained judgment for the balance due upon his wages, but was nonsuited on the other claim, and from that nonsuit he appeals.

The complaint does not allege that there have been any net proceeds from the mines, nor that a reasonable effort to obtain net proceeds had not been made, nor that defendant had sold the property, or otherwise disabled himself from obtaining net proceeds; but his right to recover is based upon the theory that the...