Keller v. Hall

• Decision Date: 12 April 1940
• Docket Number: No. 9195.,9195.
• Citation: 111 F.2d 129
• Parties: KELLER v. HALL.
• Court: U.S. Court of Appeals — Ninth Circuit

111 F.2d 129 (1940)

KELLER v. HALL.

No. 9195.

Circuit Court of Appeals, Ninth Circuit.

April 12, 1940.

Faries & McDowell, David R. Faries, and Leonard S. Janofsky, all of Los Angeles, Cal., for appellant.

Otto E. Myrland, of Tucson, Ariz., for appellee.

Clifford R. McFall, of Tucson, Ariz., amicus curiae.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

WILBUR, Circuit Judge.

This suit was before this court on a former appeal. Then, as now, the appellant was H. W. Keller, who, acting on behalf of Las Mercedes Copper Mining Company and San Manuel Mines Company, two corporations organized under the laws of the Republic of Mexico, had entered into a contract with the appellee, James M. Hall, for the operation and exploitation of certain mining properties in Mexico. That contract provided in part that Hall was to take possession of the properties, erect a mill thereon, and pay a guaranteed royalty.

This suit was brought by the appellant against the appellee for an alleged breach of the contract. Damages aggregating $119,500 were claimed on account of unpaid royalties, of a failure to erect the mill as agreed, and for other minor breaches of the contract. An accounting was sought as to alleged liens and encumbrances due to appellee's failure to pay claims for labor. Appellant also prayed for a decree that appellee deliver possession and execute reconveyances to the corporations.

The appellee filed an answer and a cross-complaint, alleging in each that the corporations represented by appellant did not have title to the properties covered by the contract entered into by appellant in their behalf and for that reason the appellee had been prevented from mining thereon for fear of violating the criminal laws of Mexico applicable thereto. The cross-complaint sought to recover the sum of $353,434.88 for damages resulting from the alleged failure of title.

The court below treated the case as a suit in equity and for that reason it will be so considered here.¹ On November 3, 1936, that court entered a decree dismissing the complaint and awarding appellee the sum of $15,500 upon his cross-complaint on the theory that because of failure of title the contract was void for lack of consideration.

The appellant perfected an appeal from the judgment and during the pendency of the appeal entered into a number of written contracts with appellee relating to the matter including a stipulation for a judgment of reversal and for retrial. The agreement for a reversal of the judgment was signed by the parties personally and also by their attorneys in the case. These contracts and the stipulation resulting therefrom purported to be a settlement of all the claims of the appellee against the appellant² but of none of the claims of appellant against the appellee.³

Contemporaneously therewith appellee assigned to J. C. Argue, appellant's nominee, the decree entered by the district court against appellant on November 3, 1936, "together with any and all claims which he may now hereafter have against said H. W. Keller and against Las Mercedes Copper Mining Company, S. A. and San Manuel Mining Company, S. A., and/or any of them in any way arising out of that certain agreement executed on November 13, 1933, at Los Angeles, California, between the aforementioned companies as parties of the first part and the undersigned as party of the second part. * * It is further understood that nothing herein contained in any way affects the claims of plaintiff herein against the undersigned or constitutes any admission on the part of the undersigned that he is in any way indebted to the plaintiff herein under the terms of the contract of November 13, 1933, hereinbefore referred to."

Thereafter, the appellant presented this stipulation for a reversal to this court and moved that this court make its order reversing the decree of the district court "and make its order remanding the said cause to the said United States District Court for a new trial, each party to bear his own costs on appeal."

In accordance with stipulation and motion of the appellant this court made its order reversing the judgment of the district court and remanding the cause for a new trial. Prior to the new trial the appellant filed a supplement to his answer to the cross complaint in which he alleged that by reason of the stipulations and contracts above referred to the claim of the appellee Hall set up in the cross complaint had been settled. The trial court...