Last Chance Mining Co. v. Tuckahoe Mining Co.

• Decision Date: 11 March 1918
• Docket Number: No. 2059.,2059.
• Parties: LAST CHANCE MINING CO. et al. v. TUCKAHOE MINING CO. et al.
• Court: Missouri Court of Appeals

202 S.W. 287

LAST CHANCE MINING CO. et al. v. TUCKAHOE MINING CO. et al.

No. 2059.

Springfield Court of Appeals. Missouri.

March 11, 1918.

Rehearing Denied April 13, 1918.

Appeal from Circuit Court, Jasper County, J. D. Perkins, Judge.

Suit by the Last Chance Mining Company and others against the Tuckahoe Mining Company and others. From the decree rendered, defendants appeal. Reversed and remanded, with directions.

H. W. Currey, of Joplin, and Geo. V. Farris, of Webb City, for appellants. Norman A. Cox and Hugh Dabbs, both of Joplin, for respondents.

STURGIS, P. J.

This action has for its object the correction and reformation of a written contract for a mining lease on certain land in Jasper county and the specific performance of same as modified by a parol agreement. The substance of the written contract is that the grantee therein shall have the right to prospect and mine said land on the terms prescribed, and, if lead, and zinc ores are found in sufficient quantities to make the mining same profitable, the grantor will then execute a mining lease on said land to the grantee for the term therein mentioned.

The grantor is the Tuckahoe Mining Company, and the grantee is the Last Chance Mining Company. The petition alleged and the evidence shows that both such companies are names of copartnerships, and that both parties to the contract executed the same in their partnership or trade-names without setting out the names of the individuals composing such firms. The court is asked to reform the contract so as to do this and such relief was granted.

We are satisfied that this 'was a matter of small importance between the parties, and is only injected as a preliminary matter in the action for specific performance of the alleged modified contract. The persons composing the grantee or lessee firm (the plaintiffs) went into possession of the land in question, and had mined same for more than a year before this action was commenced without objection (except as to the amount of rent or royalty to be paid as we shall see) by defendants, owners of the land (or superior lessees rather), the persons composing the lessor firm. Such plaintiffs were in possession and mining said land when this' suit was commenced, and " no controversy had arisen between them and the grantors of the lease except as to the amount of royalty to be paid,. The persons composing the lessor firm were themselves lessees of the landowner, and the contract for lease now in question recited that it was subject to the contract for lease "given to the Tuckahoe Mining Company," which contract was in fact to the individuals composing the Tuckahoe Mining Company. The individuals composing the Tuckahoe Mining Company at all times treated with and recognized the Last Chance Mining Company as a copartnership or trade-name for the persons, plaintiffs in this case, who were mining on the land under this contract, and a like recognition was given by plaintiffs to the Tuckahoe Mining Company in paying royalties, etc., as being the copartnership name of the defendants in this case. The reformed contract leaves the parties just as they have recognized and treated each other at all times. Had there been a real cause for reforming the instrument in this respect, the court was warranted in doing so. Skinker v. Haagsma, 99 Mo. 208, 12 S. W. 659; Stark Bros. v. Kirkley, 129 Mo. App. 353, 360, 108 S. W. 625; Spaulding Mfg. Co. v. Godbold, 92 Ark. 63, 121 S. W. 1063, 29 L. R. A. (N. S.) 282, 135 Am. St. Rep. 168, 19 Ann. Cas. 947; 20 Cyc. 318.

The land demised was described in the contract for lease as certain numbered lots in Jasper county, Mo., "lying west of the Frisco Railroad on the Joplin-Colorado Mining Company's land in section ___, township ___, range ___," and the court was asked to and did reform the contract by inserting the proper numbers of section, township, and range to conform to the land actually occupied and being mined by the plaintiffs. There was no real dispute between the parties as to the land the plaintiffs were to mine and were in fact mining under this lease and paying royalty on the ores mined to defendants. The contract was fully executed in this respect, and there was no difficulty in locating the land without reference to the numbers of the section, township, and range. The Joplin-Colorado Mining Company was shown to have owned only the one tract of land which it leased to defendants, and by them had been platted into mining lots lying on both sides of the Frisco Railroad, and plaintiffs were put in possession and were mining on lots with correct numbers on the west side of the railroad under the lease in question. The court properly reformed the written contract and made more definite that which was already sufficiently so. 2 Pomeroy's Equity Jurisprudence, 866, 871; Mantz v. Maguire, 52 Mo. App. 136, 149; Epperson v. Epperson, 161 Mo. 577, 61 S. W. 853; 20 Cyc. 279. If the plaintiffs had had no other grievances than those mentioned, this suit would not have been brought, and had the court granted no other and further relief, as it might have done, than the reformation of this contract in the particulars mentioned, there would have been no appeal.

Here is the real controversy: The written contract for the mining lease from defendants, under the name of the Tuckahoe Mining Company, to plaintiffs, under the name of the Last Chance Mining Company, specified that the plaintiffs should pay as royalty to the defendants 20 per cent. of all ores mined on said land, and that the lease to be executed when paying mineral ore was found should provide for royalty at the same rate. The plaintiffs allege in their petition that afterward by mutual parol agreement the rate of royalty was changed to 15 per cent., and ask to have the court decree specific performance of the modified agreement and decree the execution of a lease at 15 per cent. royalty instead of 20 per cent., as provided by the writing. The defendants resist this on the ground that such parol modification is void under the statute of frauds. The court granted the relief prayed for.

The defendants are correct in saying that the subsequent modification of the written agreement in so material a matter as fixing a different rate of rent or royalty is in effect the making of a new contract, and the new contract, a parol one, is the one sought to be specifically performed. Carman v. Harrah, 182 Mo. App. 365, 376, 170 S. W. 388; Goller v. Oil Supply Co., 173 Mo. App. 48, 57, 60, 161 S. W. 584.

And there is no doubt but that, when the contract is one which must be in writing in order to be valid under the statute of frauds, then the modification of the contract must also be evidenced by writing or same is void.

"It should be apparent that, if the original contract must be in writing, to be capable of enforcement, any subsequent change therein must likewise be in writing." Rucker v. Harrington, 52 Mo. App. 481; Price v. Hart, 29 Mo. 171; Warren v. Mayer Mfg. Co., 161 Mo. 112, 61 S. W. 644; Ives v. Kimlin, 140 Mo. App. 293, 303, 124 S. W. 23; 20 Cyc. 287.

In 2 Reed on Statute of Frauds, § 454, the law is stated thus:

"Subject to certain exception which will be given hereafter, the general doctrine may be laid down as true that the subsequent modification of a written contract under the statute of frauds is not valid at law, nor at equity without part performance."

It is this last clause which challenges our attention in this case.

It is obvious that the contract in question is within the statute of frauds; for it is not only one transferring an interest in land, but the contract and lease to be given thereunder cover an unexpired period of about seven years, and thereby the defendants obligated themselves to permit mining on this land and to receive royalty at 15 per cent. during that period, and the corresponding duties are imposed on plaintiffs for a like period; so that the contract was one not to be performed within a year. Aylor v. McInturf, 184 Mo. App. 691, 171 S. W 606; Johnson v. Reading, 36 Mo. App. 306.

No suit at law can be maintained on such contracts even when same have been fully performed by the parties suing. Aylor v. McInturf, supra; Reigart v. Mfrs.' Coal & Coke Co., 217 Mo. 142, 117 S. W. 61; Johnson v. Reading, 36 Mo. App. 306; Nally v. Reading, 107 Mo. 350, 17 S. W. 978. It is said in the Aylor Case, supra, that the Supreme Court in the Reigart Case, supra, construed the Nally Case, supra, as establishing this doctrine; but in both the Aylor Case and in the...