McRae v. Feigh
| Decision Date | 11 July 1919 |
| Docket Number | 21,286 |
| Citation | 173 N.W. 655,143 Minn. 241 |
| Parties | C. J. McRAE v. THOMAS M. FEIGH AND ANOTHER; J. D. MAHONEY, AS SPECIAL ADMINISTRATOR, APPELLANT |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county against Thomas M Feigh and Patrick Hammel, copartners doing business under the name of Thomas Feigh, to recover $41,438.29 and to have a receiver appointed to collect future royalties over and above 30 cents per ton upon all ore removed from the premises described in the complaint. Upon the death of Thomas Feigh J. Daniel Mahoney, special administrator of his estate, was substituted defendant. The facts are stated in the opinion. The case was tried before Fesler, J., who at the close of the testimony denied defendants' motion for a directed verdict, submitted to the jury the three questions mentioned in the opinion on page 244, and ordered judgment in favor of plaintiff for the amount demanded. Plaintiff's motion for amended findings or for a new trial was denied. From an order denying defendant Feigh's motion to amend the findings and order judgment for defendant notwithstanding the verdict or for a new trial, J. Daniel Mahoney, as special administrator of the estate of Thomas Feigh, deceased appealed. From an order denying his motion for a new trial plaintiff appealed. Affirmed on both appeals.
APPEAL OF DEFENDANT MAHONEY.
Broker -- findings supported by evidence.
1. The findings of the trial court that the owners of a tract of land, containing deposits of iron ore, employed plaintiff to procure a purchaser who would take an option for a lease on certain prescribed terms, and promised plaintiff as compensation whatever amount he obtained as a royalty over 25 cents per ton; that plaintiff procured a purchaser ready to take an option for a lease at a royalty of 30 cents per ton; that the owners refused to execute this contract solely for the reason that plaintiff claimed the excess royalty of five cents per ton; that thereafter the owners made a new agreement with plaintiff, by which, in case the property was leased, plaintiff was to have any excess of royalty over 30 cents per ton, and was to have this excess even if the property was leased by the owners without plaintiff's aid, is sustained by the evidence.
Variance.
2. There was not sufficient difference between the contract proved and the contract alleged to constitute a fatal variance.
Limitation of action -- laches.
3. The cause of action was not barred by the statute of limitations, nor by the laches of defendant.
Statute of frauds.
4. Enforcement of the contract is not inhibited by the statute of frauds, as it was performable within one year and was actually consummated within that period.
Contract -- consideration -- uncertainty.
5. The relinquishment of plaintiff's claim under the prior contract and his acts under the present contract constitute a valid consideration, and the contract is not void for want of mutuality. Neither is it void for indefiniteness and uncertainty.
APPEAL OF PLAINTIFF.
Receiver -- appointment not warranted.
Plaintiff sought the appointment of a receiver to collect and pay to him his share of the royalties which should accrue in the future, and appealed from an order denying a new trial of this issue. Held that the facts shown did not entitle plaintiff to such relief.
Fryberger, Fulton & Spear and A. T. Rock, for plaintiff.
A. L. Agatin and Albert Fink, for the special administrator.
In 1905, defendant Feigh became the owner of a tract of land in Crow Wing county on which an iron mine was subsequently developed. The land was purchased through defendant Hammel, and a claim made by Hammel to an interest in the property was determined in his favor in the case of Hammel v. Feigh, supra, page 115, 173 N.W. 570, in which the decision of this court was filed on June 20, 1919.
After it became known that the land contained deposits of iron ore, Feigh desired to find a purchaser for the ore who would take a lease of the property and mine the ore on a royalty basis. It appears from the findings of fact that in 1907 Feigh promised to pay plaintiff $500 if plaintiff procured a purchaser who took an option for such a lease at a royalty of 25 cents per ton on certain prescribed conditions, and $5,000 if such purchaser exercised the option and actually took a lease; that under this agreement plaintiff opened negotiations with the representative of an iron company, but did not succeed in closing a contract, and later opened negotiations with another iron company which were progressing favorably, but were terminated because Feigh gave an option for a lease to another party; that thereafter plaintiff made a new agreement with Feigh, by which instead of a cash commission he was to have whatever amount he secured as a royalty over and above 25 cents per ton; that acting under this agreement he induced E. C. Hollidge to agree to take an option for a lease at 30 cents per ton; that after the contract had been drawn up and had been approved as to form by the attorneys of both parties, Feigh refused to sign it because he was unwilling to allow plaintiff five cents per ton of the royalty; that thereafter and on or about July 1, 1909, plaintiff made another agreement with Feigh by which he was given the exclusive right to lease the property and by which "said defendants agreed to give plaintiff all they got over and above thirty cents a ton in case plaintiff secured a lessee and that if defendants themselves leased the property without the aid of plaintiff they would give plaintiff everything they got over thirty cents a ton;" that acting under this agreement plaintiff again tried to find a party who would take an option for a lease; that on August 24, 1909, Feigh made a contract with the C.M. Hill Lumber Company, by which that company took an option for a lease at a royalty of 35 cents per ton payable quarterly on the twentieth day of each January, April, July and October while the lease remained in force; that after doing some exploratory work this company exercised its option, and on May 24, 1910, took the lease of the property under and in accordance with the contract; that the mine has been developed and is still being operated under this lease as changed and modified by the parties; that Feigh has been paid 35 cents per ton for all ore taken from the property; that he received the first of these payments on July 20, 1910, and has received a payment on every succeeding quarter day, and that he refused to pay to plaintiff any part of the amount so received.
On October 1, 1917, plaintiff commenced this action to recover one-seventh of each payment already received by Feigh under the lease, and to have a receiver appointed to collect the future royalties, or for such other equitable relief as would secure the payment to plaintiff of his share of such future royalties as they accrued.
Feigh interposed a separate answer, in which he admitted leasing the property to the C.M. Hill Lumber Company and the payment of royalties by that company as claimed by plaintiff, admitted that in 1908 he had agreed to pay plaintiff $5,000, if plaintiff effected a lease of the property at 30 cents per ton, admitted that he refused to sign the Hollidge lease because plaintiff claimed all of the royalty above 25 cents per ton, and denied the other claims of plaintiff.
Defendant Hammel interposed a separate answer in which he asserted ownership of a half interest in the mine, and admitted that Feigh, acting for both of them, had made the contract with plaintiff as alleged by plaintiff, and that plaintiff was entitled to five cents per ton of the royalty received under the lease made by Feigh.
The action was tried as an action in equity, but the court submitted the following three questions to a jury:
(1) Did the defendants agree with plaintiff to give plaintiff an exclusive option to lease the property?
(2) Did the defendants agree with plaintiff to give plaintiff all they got over and above thirty cents a ton in case the plaintiff secured a lessee?
(3) Did the defendants agree with the plaintiff that if defendants themselves leased the property without the aid of plaintiff they would give plaintiff everything they got over and above thirty cents a ton?
To each of these questions the jury answered "yes." The court made full findings of fact which accord with the findings of the jury and directed judgment in favor of plaintiff for plaintiff's share of the royalties already received by Feigh, but made no provision for securing plaintiff's share of royalties which may be paid in the future. Feigh moved to set aside the verdict, and to amend the findings and for a judgment in his favor, or for a new trial. While these motions were pending Feigh died and Daniel Mahoney, as special administrator of his estate, was substituted as defendant in his place and stead. These motions were denied and the special administrator appealed.
APPEAL OF DEFENDANT MAHONEY.
1. The court found as a fact that plaintiff was not the procuring cause of the lease made by Feigh with the C.M. Hill Lumber Company, and hence plaintiff's claim to the amount by which the royalty exceeded 30 cents per ton rests upon the agreement found both by the jury and by the court that plaintiff should receive such excess even if the lease was made by Feigh himself without plaintiff's assistance. Appellant attacks this finding as unsupported by the evidence. Plaintiff and Hammel testified to the effect that such was the agreement. Feigh denied it. Appellant urges various considerations as discrediting the testimony of plaintiff and Hammel, and justifying its rejection. The extent to which a witness is to be believed and the weight...
To continue reading
Request your trial