Page v. Savage

• Decision Date: 30 April 1926
• Citation: 246 P. 304,42 Idaho 458
• Parties: L. B. PAGE, Respondent, v. M. L. SAVAGE, Appellant
• Court: Idaho Supreme Court

246 P. 304

42 Idaho 458

L. B. PAGE, Respondent, v. M. L. SAVAGE, Appellant

Supreme Court of Idaho

April 30, 1926

MINES AND MINERALS-LEASE OR LICENSE-AUTHORITY OF MANAGER OF MINING COMPANY - RATIFICATION BY CORPORATION - SUBLEASE OF MINING PROPERTY-CONTRACT - PLEADING - EVIDENCE-WRONGFUL EXTRACTION OF ORES-MEASURE OF DAMAGES-ESTOPPEL-INSTRUCTIONS.

1. Grant of mining privileges by mining company, and subsequent grant from lessee to third person, held to constitute leases and not licenses, under C. S., secs. 5373 and 5374 notwithstanding original grant was executed by manager of mining company.

2. Lease of mining privileges, executed by manager of mining company, even though unauthorized, became binding lease when ratified by company by acceptance of percentages or royalties in lieu of rents.

3. Where mining company does not question validity of lease made by its manager, or of sublease executed by lessee to which company had consented, original lessee cannot raise such question, in action by sublessee for damages for removal of ore by sublessor.

4. Sublease of mining privileges, reserving in sublessor privilege of raising to certain level, held to place no limitations on sublessee's right to mine above such level, and to be free from ambiguities and uncertainties.

5. In action for damages by sublessee of mining privileges because of sublessor's removing ore from leased property plaintiff was only required to set out contract haec verba in his complaint, where contract was not ambiguous or uncertain.

6. In action by sublessee of mining privileges for damages for alleged removal of ore by sublessor, excluding question asked plaintiff on cross-examination as to whether he knew that defendant had given another lease was not error, since fact that another lease had been given at subsequent date to different party without plaintiff's consent would constitute no defense to action.

7. In action by sublessee of mining privileges for damages for removal of ore by sublessor, sustaining plaintiff's objection to question relative to his signature on entirely different lease was proper.

8. Sublessee of mining privileges, alleging damages because of removal of ore by sublessor, being qualified as experienced miner to testify as to methods and means of extracting ore was properly permitted to testify that he could and would have removed ore if he had been permitted to do so, stating method he would use and costs thereof; weight of such evidence being for jury.

9. On appeal from judgment for sublessee of mining privileges for damages for removal of ore by sublessor, every reasonable intendment in support of verdict will be indulged in.

10. Where wrongful extraction of ores by sublessor of mining privileges had been established and approximate value thereof shown, together with fact that ore was removed within life of lease, such facts may be considered in connection with sublessee's testimony that he could, and would, have removed ore had he been permitted to do so.

11. Where court, by overruling demurrer to complaint by sublessee of mining privileges for damages for removal of ore by sublessor, ruled that contract was not ambiguous, sublessor has no ground for complaint of instruction submitting question of ambiguity to jury after admission of evidence of practical construction of exception contained in contract.

12. One of elements essential to application of doctrine of equitable estoppel is that party claiming benefit must be ignorant of true state of facts.

13. Sublessor of mining privileges, having removed ore above level which he knew he had subleased, cannot claim estoppel because of renewal of sublease or of failure of sublessee to protest or seek to enjoin him from removing ore.

14. In action by sublessee of mining privileges for damages for removal or ore by sublessor, instruction permitting jury, as means of ascertaining damages, to consider smelter settlements which sublessor received for ore was proper.

15. In action by sublessee of mining privileges for damages for ore removed by sublessor, instruction that in ascertaining damages jury should take into consideration quality and quantity of ores which could have been removed by sublessee and smelter returns in determining value in connection with reasonable cost of removal, together with royalties to company and to sublessor, was proper as to measure of damages.

16. Under sublease of mining privileges, which was lease and not merely license, sublessee could recover for ore removed by sublessor without proving that he had exhausted all ore covered by lease other than ore removed by sublessor.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. A. H. Featherstone, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Cannon & McKevitt, Lester S. Harrison and J. E. Gyde, for Appellant.

The contract, exhibit "A," although designated a "mining lease," conveyed no interest from the company to Savage in any of its mining ground, nor in any of the ores in its ground before extraction; nor any interest in the ores extracted from its ground after extraction. (C. S. 5374.)

While the manager of a corporation has great powers in the way of entering into contracts for the employment of servants of the corporation, he has no power whatever to convey its lands or lease them or give licenses therein. (3 Fletcher, Cyc. Corp., p. 3307, sec. 2127; 3 Cook, Corp., 6th ed., sec. 719, p. 2313; Butte & B. Consol. Min. Co. v. Consolidated Oregon Purchasing Co., 21 Mont. 539, 55 P. 112; Franklin v. Havalena Min. Co., 16 Ariz. 200, 141 P. 727.)

Even had the contract been executed by an attorney in fact, holding absolute authority from the company to lease its lands, it would be nothing more than a working contract, granting to Savage the right to mine ores somewhere in the company's property (not definitely described where), giving unto him for mining the same, instead of a wage, a certain percentage of the net smelter returns of the ores so mined. (Hudepohl v. Liberty Hill Con. Min. & Water Co., 80 Cal. 553, 22 P. 339; Arrington v. State, 168 Ala. 143, 52 So. 928; Smyth v. Tennison, 24 Cal.App. 519, 141 P. 1059.)

Although an instrument may be designated a lease and use technical words of a lease, that will not make it a lease if in fact it is something else. (Whiteside v. Oasis Club, 162 Mo.App. 502, 142 S.W. 752.)

Where a contract is set out in haec verba in a pleading the pleading must partake of whatever ambiguity there is in the contract, and if the contract is uncertain, the pleader must put some definite construction upon it by averment; otherwise it is subject to general demurrer. (Durkee v. Cota, 74 Cal. 313, 16 P. 5; Joseph v. Holt, 37 Cal. 250; Hill v. McCoy, 1 Cal.App. 159, 81 P. 1015; Merkaley v. Fisk, 179 Cal. 748, 178 P. 945; Silvers v. Grossman, 183 Cal. 696, 192 P. 534; More v. Elmore County Irr. Co., 3 Idaho 729, 35 P. 171; Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316.)

The motion of defendant to strike out the testimony of plaintiff to the effect that he could and would remove the ore if he had been permitted should have been granted, and the refusal to so do was prejudicial error. (Cleveland, Cincinnati, Chicago & St. L. Ry. Co. v. Alfred, 113 Ill.App. 236.)

The evidence of the witness to the effect that he could and would have taken out this ore in controversy was a conclusion and should have been stricken. (Fowler v. Delaplain, 79 Ohio 279, 87 N.E. 260, 21 L. R. A., N. S., 100; Insurance Co. of North America v. Osborn, 26 Ind.App. 88, 59 N.E. 181, and cases cited; Dubois v. Williamson, 93 A.D. 361, 87 N.Y.S. 645; Manufacturers Accident Indemnity Co. v. Dorgan, 58 F. 945, 7 C. C. A. 581, 22 L. R. A. 620.)

If parties construe a contract differently the court should direct its inquiry to the question whether there is an ambiguity and should look to a solution of the ambiguity. To solve the difficulty the court should consider in their order, first, a construction placed thereon by the parties if one has been placed thereon; second, such construction as shall be as near the minds and intent of the parties as it possibly may be and the law may permit; and, third, such as shall not do violence to the common understanding of the language used. (Fullerton v. United States Casualty Co., 184 Iowa 219, 6 A. L. R. 367, 167 N.W. 700; Burton v. Douglass, 141 Wis. 110, 18 Ann. Cas. 734, 123 N.W. 631; Pittsburg Vitrified Paving & Bldg. etc. Co. v. Bailey, 76 Kan. 42, 90 P. 803, 12 L. R. A., N. S., 745; Baxter Springs v. Baxter Springs Light & Power Co., 64 Kan. 591, 68 P. 63; Schroeder v. Griggs, 80 Kan. 357, 102 P. 469; Mitau v. Roddan, 149 Cal. 1, 84 P. 145, 6 L. R. A., N. S., 275; Keath v. Electric Eng. Co., 136 Cal. 178, 68 P. 598; 6 R. C. L. 852, sec. 241; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039, L. R. A. 1917F, 236; Twin Falls Orchard & Fruit Co. v. Salisbury, 20 Idaho 110, 117 P. 118; Burke Land Co. v. Wells, Fargo & Co., 7 Idaho 42, 60 P. 87; Manhattan Life Ins. Co. v. Wright, 126 F. 82, 61 C. C. A. 138; Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057, 30 L.Ed. 1110.)

Upon various grounds of estoppel and their application we cite the following cases: Donovan v. Maloney, 3 Boyce (Del.), 453, 84 A. 1032; Detroit Sav. Bank v. Loveland, 168 Mich. 163, 130 N.W. 678, and cases cited; Bigelow on Estoppel, 6th ed., 570; Archdeacon v. Cincinnati Gas &amp Elec. Co., 76 Ohio 97, 81 N.E. 152; Eltinge v. Santos, 171 Cal. 278, Ann. Cas. 1917A, 114, 152 P. 915; Carmine v. Bowen, 104 Md. 198, 9 Ann. Cas. 1135; Branthover v. Monarch Elevator Co., 33 N.D. 454, 156 N.W. 927; Dickinson v. Perry, 75 Okla. 25, 181 P. 504; Tobias v. Morris, 126 Ala. 535, 28 So. 517; ...