Meehan v. Nelson

• Decision Date: 08 May 1905
• Docket Number: 1,125.
• Citation: 137 F. 731
• Parties: MEEHAN et al. v. NELSON et al.
• Court: U.S. Court of Appeals — Ninth Circuit

137 F. 731

MEEHAN et al. v. NELSON et al.

No. 1,125.

United States Court of Appeals, Ninth Circuit.

May 8, 1905

This suit was brought to enforce the specific performance of a contract, which is set forth in the amended complaint as follows:

'Gold Stream, Feb. 6, 1903.

'This is an agreement between M. Meehan and T. Larson of the first part and O. A. Nelson & G. N. Hensley of the second part. In consideration of sinking three holes to bedrock on or near the lines of Three and Four Above Dis. on Fairbanks, trib. of Fish of Fairbanks Mining District of Alaska. In consideration they receive one-half interest in No. 3 Above Dis. on Fairbanks Cr.

M Meehan.

'Work to begin immediately. In case of water driving them out will extend time until July 1, 1903.

M. Meehan. 'T. Larson.'

It is alleged that plaintiffs performed all the conditions of said agreement previous to the time fixed for the performance thereof; that demand was made upon defendants to execute a conveyance of the interests mentioned in said agreement, and that they refused so to do.

The cause was tried before the court, and the court, having fully considered the matter, found the following facts:

'(1) That at the time of the commencement of this suit defendants owned and were possessed of that certain placer mining claim described in plaintiffs' complaint, and containing 20 acres.

'(2) That on the 6th day of February, 1903, plaintiffs and defendants, M. Meehan and T. Larson, entered into the agreement mentioned in said complaint, and that at the time said agreement was made defendants owned and were possessed of the placer mining claim therein described, to wit, placer mining claim 'Number Three Above Discovery,' on Fairbanks Creek, Alaska.

'(3) That immediately thereafter plaintiffs commenced the performance of their part of said agreement, and continued, until they completed same, in time and at the places therein designated, and that plaintiff performed all the conditions of their agreement with the defendants to be performed under its terms.

'(4) That immediately after the completion of said agreement plaintiffs notified defendants M. Meehan and T. Larson of the completion of same, and demanded of defendants, prior to the commencement of this action, a conveyance of said one-half interest in said mining claim, which demand was by the defendants never complied with.

'(5) That the defendants, after the completion of the sinking of three holes by plaintiffs under their contract, and without inspecting said work, promised plaintiffs to make said conveyance, but delayed, neglected, and failed to make the same and to examine and inspect said work until it was impossible so to do by reason of said holes having caved in and filled with water, when defendants refused to convey said interests in said claim to said plaintiffs upon their request so to do, and which request was never by the defendants complied with.

'(6) That at the times hereinbefore set forth the defendants were, and ever since have been, in possession of said mining claim.

'(7) That during said time defendants have worked and mined said claim through laymen, and have collected and received all the royalties, rents, and profits of the said described premises, amounting in the whole to three thousand dollars.

'(8) That prior to the filing of the amended and supplemental complaint herein plaintiffs demanded of the defendants an accounting of said royalties and of the payment to them of their share of the same, and that defendants refused to make accounting, and to make payment to plaintiffs of their share of the same.'

As conclusions of law from the foregoing facts the court found:

'(1) That plaintiffs performed all of the conditions of their agreement with the defendants to be by them performed.

'(2) That plaintiffs are entitled to prevail herein and to a decree of this court decreeing a specific performance of said agreement, and to a conveyance of one-half of the claim described herein.

'(3) That defendants are estopped from questioning plaintiffs' rights to said premises under said agreement by reason of the facts stated in the fifth paragraph of the findings of fact herein.

'(4) That the plaintiffs are entitled to a judgment and decree for one-half of the rents and royalties collected and received by the defendants, M. Meehan and T. Larson, and for their costs and disbursements in this behalf expended.' A decree was entered in favor of the plaintiffs, in accordance with the findings, from which decree this appeal was taken.

There are 11 assignments of error, to the effect that the court erred in its several findings of fact and conclusions of law, the pivotal point being 'that the facts proven by the evidence produced at the trial of said cause were not sufficient to support said decree.'

John Garber, Sidney V. Smith, and Claypool, Stevens & Cowles, for appellants.

H. J. Miller (T. C. West, of counsel), for appellees.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge, after making the foregoing statement, .

Appellants claim that 'the finding that plaintiffs performed the work is wholly unsustained by the evidence. ' It will be observed that under the contract that three holes were to be sunk to bedrock. Counsel for appellants admit that the testimony in relation to holes 1 and 2 is clear, positive, direct, and certain. They were sunk 'to bedrock.' The controversy between the parties is confined solely to hole 3. Was it sunk to bedrock?

O. A. Nelson, one of the plaintiffs in the court below, testified, among other things, as follows:

'Q. Did you do anything under that arrangement in the way of carrying out the agreement? A. I fulfilled the contract.'

It is argued that this answer was a mere conclusion of law, not constituting any legal evidence which this court should consider as tending to show the fact that the hold was sunk to bedrock. The record shows that no objection was made by defendants to this answer as being a mere conclusion. No motion was made to strike the testimony out, and no questions on cross-examination or otherwise were asked the witness by either party as to what he meant by his statement, 'I fulfilled the contract.' Of course, the contract could not have been fulfilled unless the hold had, as a matter of fact, been 'sunk to bedrock.' If any inference is permissible from the conclusions given by the witness, it would be that the hole was sunk to bedrock. Without stopping to inquire whether the appellants would be estopped by such testimony given, without objection on their part being taken at the trial, and conceding for the purposes of this opinion that the objections to this testimony can now be raised on appeal and exceptions taken, we proceed to examine further testimony given by this same witness, viz.'

'A. After the work was done I went over on Captain Creek one trip; that was on the 6th of March. Q. State how soon after that you met Meehan and Larson? A. We started to pull out of there the 7th, * * * and on the 8th we got out as far as the mouth of Twin. I think at Golden City on the 8th or 9th we saw Meehan and Larson. Q. State what took place there. A. We told them that the work was done and told Meehan * * * I supposed they would like to go and investigate, and he told me: 'I guess the work is all right. When you go into town make out your papers, and some time when we both come in we will sign them. * * * ' Q. What did you do next with regard to making out the papers according to Meehan's instructions? A. * * * I think it was on the 16th of May the papers were made out, although I saw Meehan before that time in town, and told him we hadn't got the papers made out yet. Q. When did you see him next? A. The next I saw him after I got the papers, that was some time in June. I went out on purpose to see him. Q. State what happened on that occasion. A. Why, he had told me before that they were going to bale the water out of the holes, and see whether they were to bedrock or not, and I told him to go ahead. I expected they had done that when I went out there with the papers, but he said he hadn't done it, and was going out to do the work.'

Again, in the further course of his examination the following question and answer appear:

'Q. Will you state the depth to bedrock? A. The first hole was a strong 16 feet deep and one foot down in the bedrock. The second hole is 17 and some inches to bedrock, I think 3 inches or something like that-- anyway, it is a strong 17 feet; and the other one is 22 feet or about that.'

We are unable to accept the statement of the learned counsel for appellants 'that this answer asserts nothing more positively than that the first hole went down a foot into bedrock, that the second hole went to bedrock, and that the third hole was 22 feet deep. ' The answer must be considered with reference to the question asked as to the depth of the three holes to bedrock. To answer the question the statement of the witness as to the first hole being 'one foot down in the bedrock,' and the second hole 'to bedrock,' was mere surplusage, and it was unnecessary for the witness to repeat the words 'to bedrock' in respect to the third hole in order to complete the answer to the question as asked. Suppose the question had been asked, 'What was the depth of the third hole to bedrock?' and the answer given, '22 feet or about that.' Would not that have been a complete, direct, and positive answer to the question? The question was a leading one, but no objection was taken to it, and the answer must be accepted as evidence.

This is the only positive and direct evidence on this point. In this connection it is deemed proper to state that the evidence in the record...