Manson v. Dayton

• Decision Date: 24 January 1907
• Docket Number: 2,428.,2,427
• Citation: 153 F. 258
• Parties: MANSON v. DAYTON et al. JARMUTH v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

153 F. 258

MANSON v. DAYTON et al.

JARMUTH v. SAME.

Nos. 2,427, 2,428.

United States Court of Appeals, Eighth Circuit.

January 24, 1907

On the 23d day of March, 1905, an agreement in writing was entered into between the Independence Smelting & Refining Company, a corporation of Colorado, as party of the first part, and Adolph J. Jarmuth, of Denver, as party of the second part the essential parts of which contract are as follows:

'That the said party of the second part, for and in consideration of the sum of one dollar to him in hand paid by the said party of the first part, the receipt whereof is hereby acknowledged, and for and in consideration of the further sum of forty-nine thousand and nine hundred and fifty ($49,950) dollars, to be paid according to the tenor of one hundred (100) certain promissory notes made by the said party of the first part to the said party of the second part each of the said notes being of even date herewith, and each of said notes being for the principal sum of five hundred ($500) dollars, except that certain promissory (note) falling due the 28th day of January, 1907, which shall be for the principal sum of four hundred and fifty ($450) dollars, and for and in consideration of the agreements and undertakings of said party of the first part herein expressed, has demised and let unto said party of the first part, for the purpose of taking and using, for a term of five years and no longer, commencing March 28, A.D. 1905, and ending March 28, 1910, all the slag, slag dumps and all materials and smelter products, belonging to said first party, situated upon the following described land at Golden, Jefferson County, Colorado: (Here follows a description of the land by metes and bounds); being the slag, slag dumps and all materials and smelter products situated about three thousand (3,000) feet southwesterly from the smelter now operated by said first party.

'And the second party, for the consideration named herein, hereby grants to said first party, its agents and employees, free access to said slag, slag dumps and all materials and smelter products upon said land, and full and free right of way over, upon and across said land at any and all parts thereof, for wagons and wagon roads, tramways and tramway tracks, railways and railway tracks, aerial tramways, pole lines and bucket lines during the term of this lease, for the purpose only of loading, taking out and carrying away said slag, slag dumps and all materials and smelter products in accordance with the terms and objects of this agreement, provided, however, that this lease shall terminate as soon as all the slag, slag dumps and all materials and smelter products shall have been removed from said land, whether the said five years shall have expired or not.'

Provisions reserving right of access in party of second part.

Further provision regarding the method of working and removing the slag and smelter products, in blocks of 100 feet parallel with the tracks of the Colorado & Southern Railway.

Provision as to the payment of the notes consecutively, and, after May 8, 1905, within six weeks after maturity, with interest after maturity at 1 per cent. per month, 'providing no slag, slag dumps or other materials or smelter products shall be removed from said land by said first party after any of the said notes are past due one week and unpaid'; with the further agreement that, if the first party desires an extension of any note, written notice shall be served upon the second party by registered letter or in person, before the maturity of such note.

Then a provision regarding the discount of any one or more of the notes, by payment before maturity.

'It is mutually agreed that all work on the said above described slag, slag dumps and materials and smelter products shall be performed in a thoroughly workmanlike manner, and that any failure of the said party of the first part to do or to keep any of the agreements herein, including the above described agreement to work said slag dumps in blocks of one hundred (100) feet, or any failure to pay immediately when due any one or more of the said one hundred (100) promissory notes maturing on or before the 8th day of May. 1905, or failure to pay the rest of said one hundred (100) promissory notes within six weeks after the same becomes due according to the tenor of the same, provided notice of extension, as aforesaid, shall have been given, or the taking or using of more than five hundred (500) tons per week of and from the said slag dumps as hereinafter provided while any (one) or more of the said one hundred (100) notes shall remain unpaid, shall work a forfeiture of all rights of the said party of the first part under this agreement, and the said party of the second party of the have the right, on giving a three days' written notice to the said party of the first part to declare each and every one, and all of the said one hundred (100) promissory notes, or whatever number of the said notes may remain unpaid, given to pay for the within lease, immediately due and payable, and shall have the right, immediately, to collect the same from the said party of the first part and in case of forfeiture as aforesaid, all work done and money expended by the said party of the first part shall inure to the benefit of the said party of the second part as liquidated damages for the failure of the said party of the first part to keep the agreements in this writing; and the said party of the second part, or his agent, may thereupon, with or without demand of possession in writing, enter upon said premises and dispossess all persons occupying the same, with or without force, and with or without process of law, or, at the option of said party of the second part, the said party of the first part, its officers or agents, and all persons found in occupation, may be proceeded against as guilty of unlawful detainer.'

Provision that in case of forfeiture the first party shall have 15 days thereafter to remove improvements, etc., placed by it upon said land for the purpose of the lease.

Provision that in case the first party shall be unable to carry out said contract by reason of acts of God, accidents, strikes, fire or causes beyond the control of the first party, affecting the smelter plant at Golden operated by it, the times for the maturity and payment of said notes shall be extended for a period not exceeding 90 days in the aggregate, 'provided, however, that said first party shall not remove or take away from said land any of said slag, slag dumps or other materials or smelter products hereby leased during the time in which the said notes shall be extended as aforesaid.'

'And in consideration of the acceptance of the foregoing lease and the expenditures to be made hereunder, and the well and faithful keeping of the covenants hereof, the said party of the first part shall have the right to purchase the said slag, slag dumps and other materials and smelter products by the payment, on or before the said 28th day of January, A.D. 1907, to the said party of the second part, in addition to the payment of all of the aforesaid said one hundred (100) promissory notes, aggregating the payment of said sum of forty-nine thousand nine hundred and fifty ($49,950) dollars, part consideration, as aforesaid, of the within lease, of the further sum of fifty ($50) dollars.

'And the said party of the second part shall, at the time of the signing of the within lease and bond, make and execute unto the said party of the first part a good and sufficient bill of sale to all the hereinabove described slag, slag dumps and other materials and smelter products situated on the said above described land, which said bill of sale shall give said first party until the 28th day of March, 1910, to remove said slag, slag dumps and all materials and smelter products, and shall be deposited, together with a copy of this agreement, in the United States National Bank, in the city and county of Denver, state of Colorado, in escrow, to be delivered to the said party of the first part, or its assigns, on the payment in full of the aforesaid notes and said sum of fifty ($50) dollars, on or before the 28th day of January, 1907, as evidenced to the United States National Bank by the presentation of the said one hundred (100) notes cancelled.'

Provision regarding the execution to the second party by the first party of said 100 notes; the first falling due on or before Monday, March 6, 1905, and the others each succeeding Monday thereafter, for 100 weeks, each of said notes to be for $500, except the note falling due on or before January 28, 1907, which shall be for $450, and each of said notes bearing no interest, except at 1 per cent. per month after maturity.

Memorandum of fact that the first party has, prior to the signing of the agreement, already used about 1,000 tons of slag from said slag dump, without payment; and that only in the event of forfeiture of all rights under the agreement shall the second party be entitled to compensation for said slag.

'It is further understood and agreed by and between the parties hereto that the said party of the first part, while any one or more of the said one hundred (100) promissory notes shall remain unpaid, shall not take or use more than at the rate of five hundred (500) tons per week of and from the said slag, slag dumps and other materials and smelter products.'

Provision that time is of the essence of the agreement, and the covenants to bind the heirs, executors, administrators, successors, and assigns of the parties.

After the execution of said contract, the said company took possession of said dump and proceeded to remove about 3,867 tons thereof, and paid to the said Jarmuth the sum of $4,500,...