Phenix v. Bijelich

• Decision Date: 24 April 1908
• Docket Number: 1,745.
• Parties: PHENIX et al. v. BIJELICH.
• Court: Nevada Supreme Court

95 P. 351

30 Nev. 257

PHENIX et al. v. BIJELICH.

No. 1,745.

Supreme Court of Nevada

April 24, 1908

Appeal from District Court, Esmeralda County.

Action by George L. Phenix and others against Nikola K. Bijelich. From a judgment for plaintiffs upon the pleadings, defendant appeals. Reversed and remanded for trial.

Henry Farnam, for appellant.

Thompson Morehouse & Thompson, for respondents.

NORCROSS J.

This is an appeal from a judgment upon the pleadings entered in pursuance of a motion for that purpose.

The complaint contains the following allegations: "That on to wit, the 31st day of January, 1905, the plaintiffs were the owners of that certain lode mining claim in Goldfield Mining District, county of Esmeralda, state of Nevada, known and called the 'September,' and on said day said plaintiffs and said defendant made and entered into a written agreement, a true copy of which is hereunto attached, marked 'Exhibit A,' and made a part of this complaint; that thereafter said defendant in pursuance of said agreement paid said plaintiffs the sum of $75 and entered into the possession and occupancy of said lot of land in said agreement described, and ever since has been and now is in the occupation and possession thereof; that said defendant has made no further payments, and although more than ten days has expired since the remaining payment as provided in said agreement became due, and was to be made, and although demand has been made therefor, said defendant has failed, refused and neglected to pay the same, and therefore plaintiffs aver that said defendant has forfeited his said contract and agreement as in said agreement specified, and plaintiffs are entitled to the possession and sole ownership of said lot of land and improvements thereon."

The material portions of the agreement referred to in and made a part of the complaint read as follows: "This agreement, made and entered into at Goldfield, Esmeralda county, Nevada, this 31st day of January, A. D. 1905, by and between G. L. Phenix, Dr. White Wolf, P. C. Kortz, W. S. Williams, and Addie Williams, of Goldfield, Nevada, parties of the first part, and Nikola K. Bijaleh of Goldfield, Nevada, party of the second part. Witnesseth, whereas the said party of the first part is the owner of that certain mining claim known and designated as the 'September,' situated in the Goldfield Mining District, Esmeralda county, Nevada, and whereas the said party of the second part is desirous of securing a portion of the surface ground of said claim. Now, therefore, in consideration of the sum of one dollar ($1.00) lawful money of the United States, paid to the first parties, by the second party, the receipt whereof is hereby acknowledged, and in consideration of the covenants and agreements hereinafter contained, the parties hereunto have promised, covenanted and agreed and do hereby promise, covenant and agree as follows: (1) The second party shall have, and he is hereby given a leasehold interest in and to the surface ground embraced within that certain lot, or parcel of land, designated upon the townsite survey of said mining claim as lot No. 5, in block No. 4, said leasehold interest to continue until the first parties acquire a government patent, to said September Mining location. (2) The second party agrees to pay to the owners of said mining claim the sum of $225.00, gold coin of the United States at the time and in the manner following: ($75.00) seventy-five dollars cash down, upon the signing of this agreement and the balance in several deferred payments as follows: On or before July 30th, 1905, $150.00, together with the further sum of one dollar ($1.00) per annum, payable in advance as rental, said deferred payments shall bear interest at the rate of one per cent. per month until paid. It is expressly understood and agreed by the parties hereto that if the second party shall fail, neglect or refuse to make said payments or any of them, as above specified, and said payments or any of them shall be in default or arrears, for a period of ten days following the date when such payment is due and payable, then and in that event, the first parties, or any of them, may enter into and take possession of said premises together with the improvements without further notice or demand and without process of law, and the second party will surrender to the first parties all of the second party's right, title and interest in and to said premises or arising under and by virtue of this contract as liquidated damages for said breach of contract. *** (3) Upon issuance of a government patent for said September mining claim, the first parties will make and execute and deliver to the second party a good and sufficient deed to said lot No. 5, provided the second party shall make written demand therefor upon the first parties together with the tender of one dollar within six months after the date of recording said patent in the office of the recorder of said county. *** (6) Time is of the essence of this agreement."

Defendant's answer contains the following admissions, denials and allegations:

"(1) Defendant admits that he entered into an agreement as set forth in plaintiffs' complaint, also, that he paid the plaintiffs the sum of seventy-five dollars. Defendant also admits that he has refused to make further payments under said agreement. Defendant also admits that he is in possession of the property described in plaintiffs' complaint. (2) Defendant, further answering, denies that the plaintiffs are the owners, and entitled to the possession of a certain lode mining claim, called the 'September,' situated in Goldfield Mining District, Esmeralda county, Nevada. (3) Defendant, further answering, charges that the plaintiffs falsely and fraudulently represented to the defendant that they were the owners of said property, when in truth and in fact said plaintiffs never did have, and have not now,

...