Idaho Gold-Mining Co. v. Union Mining & Milling Co.

• Decision Date: 12 December 1896
• Citation: 47 P. 95,5 Idaho 107
• Parties: IDAHO GOLD MINING COMPANY v. UNION MINING AND MILLING CO
• Court: Idaho Supreme Court

47 P. 95

5 Idaho 107

IDAHO GOLD MINING COMPANY v. UNION MINING AND MILLING CO

Supreme Court of Idaho

December 12, 1896

FINDINGS OF FACT.-Held, that the findings of fact are not supported by the evidence.

MINING CONTRACT-OPTION-TIME ESSENCE OF CONTRACT.-In an option to purchase a mining claim, where time is of the essence of the contract, it is obligatory upon the would-be purchaser to perform the stipulations by him to be performed within the time specified in the contract. If he fails to do so, his option to purchase may be forfeited.

DEED-SUFFICIENCY OF DESCRIPTION.-A deed conveying the Robinson mine and millsite, and containing also the following description "Also all machinery, engines, boilers.... hereby conveying to said C. Jeff. Clark all of the property, real personal and mixed, belonging to said William C. Schutz, and located in said county of Bingham, Idaho," held sufficient to convey the Austin mining claim owned by said Schutz, in said county, at the date of the execution of said deed.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Reversed, with instructions.

S. C. Winters, C. C. Dey and W. H. Bramel, for Appellant.

If the contract between Chalmers and respondent company is construed as making it the duty of Chalmers and his associates to furnish an abstract and place a deed in escrow, yet the failure to do so did not dispense with timely performance or tender of performance on the part of the Union Mining and Milling Company. (Kelsey v. Crowther, 162 U.S. 404-408, 16 S.Ct. 808.) The prior defaults of the respondent company in failing to pay royalties, to work the mine, etc., excused Chalmers and associates from furnishing an abstract and from placing deed in escrow, and those defaults not being waived ipso facto the contract ceased and became null and void. Time being the essence of the contract, the party is not entitled to an extra minute. (Settle v. Winters, 2 Idaho 215, 10 P. 221, and cases cited; Waterman v. Banks, 144 U.S. 394, 402, 403, 12 S.Ct. 646; Grey v. Tubbs, 43 Cal. 359.) When payments are to precede the conveyance it is no excuse for nonpayment that there is not a present existing capacity to convey a good title. (Robb v. Montgomery, 20 Johns. (N. Y.) 15; Easton v. Montgomery, 90 Cal. 307-315, 25 Am. St. Rep. 123, 27 P. 280.) Objection is made to the sixth finding of fact because the same finds in conflict with the evidence that the title to the Austin Mine was in Schutz, and not in Chalmers and his associates. Schutz, on May 22, 1893, was the owner of the two mining claims described in the complaint and contracts, and on that day by deed conveyed to Clark the Robinson mining claim and millsite, "also all the machinery, engines, boilers . . . . hereby conveying to said C. Jeff Clark all of the property, real, personal and mixed, belonging to said William C. Schutz and located in said county of Bingham, Idaho." This deed passed the title to the Austin to Clark. (Pettigrew v. Dobbelar, 63 Cal. 396; Lick v. O'Donnell, 3 Cal. 59, 59 Am. Dec. 383; Brown v. Warren, 16 Nev. 228; Frey v. Clifford, 44 Cal. 335; 1 Greenleaf on Evidence, 14th ed., sec. 297; Bishop on Contracts, sec. 376, and cases cited.) The findings are contrary to law because they fail to respond to the issues raised by the pleadings. It is the duty of the court to find upon the issues presented by the pleadings. (Reeding v. Perasso, 62 Cal. 515; Bagg v. Smith, 53 Cal. 88; Taylor v. Reynolds, 53 Cal. 686.) Where the court fails to find upon an issue raised by the pleadings, the findings are not merely insufficient, but they are evasive of the record, and contrary to law. In such case a special exception is not necessary, because the error is not an error of law occurring at the trial as contemplated by subdivision 7 of section 4439 of the Revised Statutes, but it is an error occurring subsequent to the trial. (Ball v. Kehl, 95 Cal. 606, 30 P. 780; Traverso v. Tate, 82 Cal. 170, 22 P. 1082; Spotts v. Hanley, 85 Cal. 155, 24 P. 738; Knight v. Roche, 56 Cal. 15, leading case.) The Union Mining and Milling Company's contract was merely an option to purchase; time was of the essence not alone by express stipulation, but by reason of the character of the property involved, and either the failure to pay royalties, to work the property, to pay or tender the $ 1,500 installment due November 14, 1894, absolutely forfeited the contract so that it could not have been specifically enforced. (Durant v. Comegys, 3 Idaho 204, 28 P. 425, 428; Waterman v. Banks, 144 U.S. 394-403, 12 S.Ct. 646; Settle v. Winters, 2 Idaho 215, 10 P. 216; Kelsey v. Crowther, 162 U.S. 404, 16 S.Ct. 808; Richardson v. Hardwick, 106 U.S. 252, 1 S.Ct. 213; Martin v. Morgan, 87 Cal. 203, 22 Am. St. Rep. 240, 25 P. 350; Kelsey v. Crowther, 7 Utah 519, 27 P. 695; 3 Pomeroy's Equity Jurisprudence, sec. 1408, and notes and cases cited.)

F. S. Dietrich, for Respondent (S. McDowall and Lawrence P. Boyle, of Counsel).

When a deed contains an accurate description by permanent boundaries capable of being ascertained, a general reference to the premises in addition, as in possession of the grantor or grantee or referring to descriptions in former deeds, or a designation by name or locality, will not have the effect to enlarge the grant, or pass title to lands outside of the boundaries given. (Warvelle on Vendors, 373, 374; Jones v. Smith, 73 N.Y. 205; Tyler v. Hammond, 11 Pick. (Mass.) 193, and notes, 212; Thayer v. Finton, 108 N.Y. 394, 15 N.E. 615; Brunswick Savings Inst. v. Crossman, 76 Me. 577; Tiedman on Real Property, sec. 827, p. 663, note 4, sec. 829, p. 666, note 5; Ingell v. Nooney, 2 Pick. 362, 13 Am. Dec. 434; White v. Gay, 9 N.H. 126, 31 Am. Dec. 225; Pogus v. Ward, 10 Nev. 269.) Chalmers and associates never tendered or exhibited an abstract or title in themselves, and never executed or tendered or placed a deed in escrow to said mining property, or any part thereof, as agreed in contract. The parties having fixed the conditions in writing were bound by them; and we submit that the respondent was not required to make any tender whatever of the $ 1,500 stipulated for in the contract of August 16, 1894, therefore the case of Kelsey v. Crowther, 7 Utah 519, 27 P. 695, 162 U.S. 404-408, 16 S.Ct. 808, has no application whatever. (Wheeler v. Garcia, 40 N.Y. 584; Waterman on Specific Performance, secs. 446, 442, 448; 2 Warvelle on Vendors, 773-775; Bishop on Contracts, 1st ed., secs. 694, 695, 697; Hennessey v. Bacon, 137 U.S. 78, 11 S.Ct. 17, Welsh v. Darling, 59 Vt. 136, 7 A. 547; 2 Parsons on Contracts, 528, note q; Benjamin on Sales, secs. 561, 562, 565; Clark on Contracts, 665-670.) A tender of performance need not be made when it would be wholly nugatory. (Waterman on Specific Performance, sec. 446, and notes.) A purchaser of land under an option entitled to a good title need not pay the purchase money until he is tendered a good title. (Clark v. Gordon, 35 W.Va. 735, 14 S.E. 255.) It is admitted by the complaint that Chalmers et al., the grantors, had conveyed to the respondent before the commencement of this action, the Robinson mine in controversy (and that was all they owned), and that both mines had been conveyed to respondent; therefore it would have been proper for the court to dismiss the suit, leaving the appellant to its remedy at law for damages against Chalmers et al. for the breach of the contract. (Saur v. Ferris, 145 Ill. 115, 34 N.E. 52; Zundelowitz v. Webster, 96 Iowa 587, 65 N.W. 835; Maguire v. Heraty, 163 Pa. St. 381, 43 Am. St. Rep. 800, 30 A. 151; Young Lock-Nut Co. v. Brownley Mfg. Co. (N. J. Eq.), 34 A. 947.) The trial court finds that at all the times between the sixteenth day of August, 1894, and the commencement of this action respondent was asserting its rights under its contract, and that it never abandoned or intended to abandon any of its rights thereunder. The question of abandonment is one purely of intention. (Wimer v. Simmons, 27 Or. 1, 50 Am. St. Rep. 685, 39 P. 6, 9; Utt v. Frey, 106 Cal. 392, 39 P. 807, 809; Beaver Brook etc. C. Co. v. St. Vrain Reservoir etc. Co., 6 Colo. App. 130, 40 P. 1066, 1068; Smith v. Hope Min. Co., 18 Mont. 432, 45 P. 632, 634.)

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This suit involves the ownership and right to possession of the Austin and Robinson lode mining claims, and the improvements thereon, situated in the Mt. Pisgah mining district, Bingham county. The plaintiff corporation seeks to have its equity in said property declared superior to the claim of defendant corporation. The trial was had in the district court of Bannock county, and judgment was rendered and entered in favor of the defendant company. This appeal is from the order overruling the motion for a new trial, and from the judgment. Five errors are assigned, four of which go to the sufficiency of the evidence to sustain the findings of fact, and that the findings of fact, as a whole, are contrary to law. The fifth assignment is that the court erred in refusing the motion for a new trial.

The facts are substantially as follows: On August 16, 1894, E. E Chalmers and others made a contract with the defendant corporation, the Union Mining and Milling Company, whereby said company was given an option to purchase said named mining claims and a certain stamp-mill and other improvements. By the terms of said contract, the Union Mining and Milling Company agreed to commence active work on said mines as soon as practicable, and carry on said work in a miner-like manner, at its own expense, for the period of one year, and to keep all machinery, etc., in good order and repair, and to pay said Chalmers and his associates one-tenth of the certain proceeds of ores taken from said mines,...