Johnston v. Schenck

• Decision Date: 08 October 1897
• Docket Number: 823
• Citation: 50 P. 921,15 Utah 490
• Court: Utah Supreme Court
• Parties: JAMES JOHNSTON, RESPONDENT, v. JEREMIAH SCHENCK AND H. H. REA, APPELLANTS

50 P. 921

15 Utah 490

JAMES JOHNSTON, RESPONDENT, v. JEREMIAH SCHENCK AND H. H. REA, APPELLANTS

No. 823

Supreme Court of Utah

October 8, 1897

Appeal from the Third district court, Salt Lake county. Ogden Hiles Judge.

Action by James Johnston against Jeremiah Schenck and H. H. Rea on a written contract. From a judgment for plaintiff, defendants appeal.

Affirmed.

Breeze & Burris, for appellants:

Cited Wordon v. Dodge et al., 2 M. R. 116; Jameson v Blowers, 5 Barb. 692; Haywood v. Shreve, 5 Vroom 104; Richards v. Schlegemich, 3 M. R. 79; Coff v. Fountaine, 3 Rand. 487; Rice v. Dwight Mfg. Co., 2 Cush. 80; Gray v. Clark, 11 Vt. 583; Benjamin v. McConnell, 4 Gilm. 536; Randall v. Scott et al., 110 Cal. 590; Hawley v. Branogin, 33 Cal. 394; Thompson v. McKay, 41 Cal. 221; Frisbie v. Moore, 51 Cal, 516; Williams v. Fletcher, 129 Ill. 356.

Dey & Street and Wilson & Bramel, for respondent:

Cited: Kreutz v. Livingston et al., 15 Cal. 345; Ganse v. Miller, 111 U.S. 395, 397; Pickard v. Bankes, 13 East 20; Beardsley v. Root, 11 Johns. 464; Hale v. Marston, 17 Mass. 575; Claflin v. Godfrey, 21 Pick. 1; Lewis v. Tipton, 10 Ohio St. 88; Page v. Cook, 28 L. R. A. 759; DeWolf v. French, 51 Me. 4-20; Crooker v. Holmes, 65 Me. 195; Ubsell v. Cunningham, 22 Mo. 124; Ramot v. Schotenfels, 15 Iowa 457; Works v. Hershey, 35 Iowa 340; Randal v. Johnson, 59 Miss. 317; Jones v. Eisler, 3 Kan. 128; McCartney v. Howell, 24 Ill. 342.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

This is an appeal by the defendants from a judgment of the district court rendered on January 4, 1897, for $ 2,591. The suit was brought upon a written contract in the following terms: "Salt Lake City, Utah, June 29, 1891. We, the undersigned, Jeremiah Schenck and H. H. Rea, have this day received from James Johnston, of Salt Lake City, Utah, the sum of two thousand dollars in cash. We own eleven-sixteenths of the Dalton and Lark lode mining claims, situated in West Mountain mining district, Salt Lake county, Utah. If within one year from and after June 15th, 1891, we, or either of us, sell, convey, or transfer any interest whatever in or to said, or either of said, lode mining claims, or any part thereof, to any person or persons whomsoever, or put the same into any incorporation now or hereafter organized, then we agree to repay on demand to said James Johnston the aforesaid sum of two thousand dollars advanced to us by him as aforesaid; otherwise such sum of two thousand dollars shall not be repaid by us to him. Witness our hands, June 29, 1891. [Signed] Jeremiah Schenck. H. H. Rea. James Johnston. In presence of ." The plaintiff averred in his complaint that the time within which the transfer of the property, or an interest therein, might be made, was extended by agreement four months, and also that the defendants made no effort in good faith to sell or transfer the same, and, with other averments not necessary to the case, alleged that the defendants have not paid to plaintiff the $ 2,000, or any part of it, although requested by the plaintiff to do so. The suit was commenced on May 18, 1896. The order of the court overruling defendants' demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the ruling denying defendants' motion for a nonsuit, and the judgment of the court appealed from, are each assigned as error.

On the trial the plaintiff simply introduced the contract set out in the complaint, and rested. The answer of the defendants admitted that the $ 2,000 had not been paid. The decision of the questions raised by the respective errors relied on depends upon the construction to be given to the contract sued on. The defendants stated in the contract that they were the owners of the Dalton and Lark mining claims, and they acknowledged the receipt of the $ 2,000 from the plaintiff and it contains an agreement to repay it to the plaintiff on demand at any time within one year after January 15, 1891, when they should sell or transfer the mining claims, or any part of them, to any person or persons, natural or legal. The agreement is followed by this language: "Otherwise such sum of $ 2,000 shall not be repaid by us to him." The plaintiff contends that this simply meant that repayment should not be made during the year without sale or transfer; while the defendants insist that it meant that repayment should never be made, if they should not make a sale or transfer during the year. The defendants' contention is that it was discretionary with them whether they should make the transfer during the year, and, if they should make it within that time, they should repay the $ 2,000 to the plaintiff, but, if they should not, they would not be required to repay, and the $ 2,000 would become theirs absolutely. In effect, the defendants would make that sum by not making the transfer. According to this construction the plaintiff paid the defendants $ 2,000 on the condition that if they should sell some part of their own mining property, mentioned, within one year, they should repay, but, if they should not, the $ 2,000 would become theirs. In the latter case they would get $ 2,000 without any consideration. It does not appear that the parties understood the transaction to be a gift. No reason appears for a gift of that sum by the plaintiff to the defendants. The construction insisted upon by the defendants amounts to this: "If you will lend us $ 2,000, we will repay you if we sell our mining claims, or some part of them, within one year; but, if we do not sell them, we will never repay you." We cannot assume that a sane man, with sufficient intelligence to make a binding contract, intended to enter into such a one as the defendants contend plaintiff did. We are not disposed to give the paper such an unreasonable construction. We are of the opinion that the paper in question bound the defendants to repay the plaintiff the $ 2,000 which he loaned them at the expiration of one year from its date, unless they should sell or transfer their mining claims, or some part of them, sooner, and in that event to pay on demand; that it gave them one year to repay, or until they should sell...