Potosi Zinc Co. v. Mahoney

• Decision Date: 25 October 1913
• Docket Number: 2,059.
• Citation: 135 P. 1078,36 Nev. 390
• Parties: POTOSI ZINC CO. ET AL. v. MAHONEY ET AL.
• Court: Nevada Supreme Court

135 P. 1078

36 Nev. 390

POTOSI ZINC CO. ET AL. v. MAHONEY ET AL.

No. 2,059.

Supreme Court of Nevada

October 25, 1913

Appeal from District Court, Clark County; E. J. L. Taber, Judge.

Action by the Potosi Zinc Company, a corporation, and others against J. J. Mahoney and another. From a judgment for the defendants, plaintiffs appeal. Affirmed.

Haas Garrett & Dunnigan, of Los Angeles, Cal., W. R. Thomas, of Las Vegas, and Stewart & Stewart, of Los Angeles, Cal., for appellants.

Gray Barker, Bowen, Allen, Van Dyke & Jutten, of Los Angeles Cal., and Richard Busteed, of Las Vegas, for respondents.

McCARRAN J.

By this action, brought in the district court of the Fourth judicial district in and for Lincoln county, plaintiffs, appellants herein, sought to obtain a decree of that court extending the time for the exercise of a certain option, or, in lieu thereof, a decree declaring that the cancellation of a certain agreement entered into between the Potosi Mining Company and the Potosi Mineral Company and theretofore conveyed by mesne process to plaintiffs be set aside. The cause was tried in the Fourth judicial district court before Hon. Geo. S. Brown, judge thereof presiding, and judgment was entered by the said judge in favor of respondents and against the appellants. Subsequently a motion for a new trial was made and presented to the same court before Hon. E. J. L. Taber, successor of Judge Brown, and his judgment was thereafter entered, denying plaintiffs' motion for a new trial. In so far as the record discloses, the principal ground relied upon in furtherance of the motion for a new trial was that the evidence did not sustain the judgment theretofore entered by Judge Brown, formerly presiding judge of said court. Heretofore an appeal was taken to this court from the judgment, and the same was dismissed by this court for want of prosecution.

Appellants, in their motion for a new trial, relied upon three grounds: First, that the decision and judgment were not supported by the evidence, and were contrary to the evidence; second, that the decision was against the law; and, third, that the court committed errors of law at the trial of the cause. These being the only matters presented to the trial court on motion for a new trial, they are therefore the only matters upon which this court will review.

As appears from the appellants' brief, the principal ground relied upon to authorize the trial court in granting a new trial, or to authorize this court in reversing the trial court in this respect, is that the decision of the trial court is not supported by the evidence, and is contrary thereto. Appellants, in their brief, especially except to the finding No. 15, as filed by the trial court, wherein that court stated: "That they (the respondents) never declared that they did not consider said option in full force and effect. That they never declared that they repudiated the same. That they never slandered nor cast doubt upon the title of said option holders to said option. That they have never at any time repudiated said option in any way, nor represented to any one that they did not consider said option in effect. * * * The court finds that no acts or conduct of defendants in any way prevented said option holders from making a sale of such property, or from paying the purchase price therefor within the time aforesaid. That it is not true that by reason of any act of defendants said option holders have been deprived of 5 months and 10 days, or of any time whatever of the period provided by said option agreement, and the court finds that plaintiffs and said option holders in particular have suffered no injury whatever, nor will they continue to suffer injury if defendants are permitted to declare said option terminated. And the court finds that no damage or detriment has been suffered by plaintiffs or any of them on account of any conduct of defendants."

As appears from the transcript in this case, an option on a certain group of mining claims was executed by J. J. and P. H. Mahoney, respondents herein, to Chris N. Brown, Wilbur O. Dow, and P. G. Gray, as trustees for the benefit of the Potosi Zinc Company. By the terms of the option the said Brown, Dow, and Gray, as trustees, were to pay to Mahoney Bros. $100,000 in payments as follows: $50,000 on or before six months from the 20th day of March, 1909; $25,000 in one year; and $25,000 in two years from the date of the contract. At the time of making the contract the trustees paid to Mahoney Bros. the sum of $250, and agreed to pay the sum of $150 per month for four additional months into the Citizens' National Bank, at Los Angeles, Cal.

At the trial of the case J. J. Mahoney was called as a witness on behalf of the plaintiffs, and from the transcript it appears that he testified: "About one month after said option was given I tendered back the $250 paid on said agreement to Chris N. Brown, J. N. Strine, and Wilbur O. Dow, each separately, and told them that we wanted to cancel the contract, and we withdrew from the Citizens' National Bank all deeds and title papers theretofore deposited with said Citizens' National Bank for the perfection of sale under said option in the event said option was exercised." At another place in his testimony he said in substance: "We refused to accept the $150 per month deposited in the Citizens' National Bank each month for four months under said agreement."

Appellants in this case contended in the trial court that, by reason of the acts and utterances of J. J. and P. H. Mahoney relative to the option, they were unable to sell or dispose of the property, and therefore unable to carry out and complete the terms and conditions of the option. But, in reviewing the testimony given and the exhibits as filed, it is apparent that the utterances of respondents relative to rescinding the option were made only to Gray, Brown, and Dow, the parties to whom the option had been given, or to their attorneys.

It appears that on March 25th respondents wired P. G. Gray as follows: "Meet me Los Angeles must discuss option further to once otherwise trouble ahead."

Plaintiffs' Exhibit No. 12 is a letter from W. E. Smith, watchman at the mine, to P. G. Gray, one of the trustees for the appellant corporation. In that letter the writer says: "I can't see how I am going to do anything with the property the shape it is in. Mr. Mahoney has been up twice, and says you people misrepresented things to him, and he says he will not turn the property over." In the latter part of the same letter the writer says: "If you get it in shape, I can sell the mine; but here is one month past, and nothing doing. I can't get any more provisions in town, and I am fighting every time I am in town to keep them from liening the mine; but they won't be put off very much longer." In his testimony the witness Smith, writer of the letter, plaintiffs' Exhibit No. 12, of which the foregoing are excerpts, said: "Referring to my statement 'and he says he will not turn the property over,' I do not know as he said that exactly. I put that in to hurry these people up. Mr. Mahoney did not tell me that he would rescind the option." The appellants contend that, the defendants having loaded and shipped ore from the mine after signing the option, their acts in that respect tended to establish appellants' contention that Mahoney Bros. had repudiated the contract, and by their shipping ore from the mine evidenced their repudiation to the world.

Defendants' Exhibit No. ZZ is a carbon copy of a letter from Mahoney Bros. to the Empire Zinc Company, at Denver, and in that letter the following appears: "We have a car load of zinc ore at Arden Station, Nevada, which we would like to sell. Please quote us your best price. This ore will run about 37% or 38% zinc and probably 10% lead. We have taken over the Potosi Zinc Mine, and you will remember that we shipped you a great deal of ore some few years ago. Please give us your best prices on the ore, as we want to get a line on what this ore is worth. We will be ready to ship the ore in about ten days, and would like to hear from you before then."

Defendants' Exhibit No. NN is a carbon copy of a letter from Mahoney Bros., respondents herein, in reply to the Empire Zinc Company, in which letter it is stated: "We are in receipt of your letter of May 14th in regard to a car load of zinc, which we are about to ship from Arden, Nevada. You understand we will not be in a position to make shipments of ore steadily from the mine until some time in September; but, as we had just a car load at Arden, we wanted to ship it immediately. * * * This is a very nice bunch of ore, and we would like to dispose of it, but do not like to ship it to anybody else. * * * Some time in September we would like to take up the question of operating the mine and shipping ore to you steadily; but until that time we do not think it would be any use to take the question up."

It may be well to observe at this point that by the conditions of the option in question in this case the time for making the first payment of $50,000 expired on the 20th day of September.

The testimony of P. H. Mahoney relative to the foregoing letters was introduced in explanation of the statement made therein and from the transcript it is disclosed that the ore shipped to the Empire Zinc Company by Mahoney Bros. and mentioned in the communication was ore that had been on the ground at the time of filing the option. The respondents J. J. Mahoney and P. H. Mahoney, being called upon the stand, both deny having repudiated the option contract. It nowhere appears in the transcript that they even inferentially repudiated their contract, or that they requested a rescission of the contract to parties other than those to...