Stanton v. Weber

• Jurisdiction: Oregon
• Parties: Roy C. STANTON, Respondent, v. Fred E. WEBER, Appellant, Mary LaBertew, Appellant, Albert E. Fray and Leland F. Fray, Intervening Plaintiffs and Appellants.
• Citation: Stanton v. Weber, 341 P.2d 1078, 218 Or. 282 (Or. 1959)
• Court: Oregon Supreme Court
• Decision Date: 15 July 1959

Page 1078

341 P.2d 1078

218 Or. 282

Roy C. STANTON, Respondent, v.Fred E. WEBER, AppellantMary LaBertew, AppellantAlbert E. Fray and Leland F. Fray, Intervening Plaintiffs and Appellants.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 6, 1958.

Decided July 15, 1959.

Irving Rand, Portland, argued the cause for appellants.With him on the brief were George H. Brewster, Redmond, for appellant LaBertew, and James F. Bodie, Prineville, for appellants Fray.

Robert H. Hollister, Portland, argued the cause for respondent.On the brief were Hollister & Hollister, Portland.

Before PERRY^*, C. J., and ROSSMAN, LUSK, McALLISTER^** and SLOAN, JJ.

McALLISTER, Chief Justice.

This suit in equity was commenced by the plaintiff, Roy C. Stanton, to impress a trust in his favor upon certain lode mining claims, legal title to which was held by the defendant, Fred E. Weber.The intervenors, Albert E. Fray and Leland F. Fray, claim superior title through the alleged prior filing of certain placer mining claims on the same property.The defendantMary LaBertew claims some interest in the property as an assignee of the Frays.From a decree in favor of plaintiff, the defendants and intrevenors appeal.

The mining property involved in this case is situated in the Ochoco National Forest in Crook county between Prineville and Mitchell.At one time it was known as the Central Oregon Quicksilver mine.Prior to World War II one Ted Takahashi acquired the property and conducted extensive exploration and mining operations thereon.He established a mining camp with a large retort, bunk house, cook house and other buildings.He also constructed head works, sank shafts, dug tunnels and from these underground workings accumulated several large dumps of ore.When the war broke out, Takahashi was forced to cease operations and leave the property with the dumps of ore still unprocessed.The property stood as Takahashi left it until 1951.

In 1951the plaintiff, Roy Stanton, acquired Takahashi's interest in the claims under an oral agreement amounting to a waiver of Takahashi's rights to the mining claims and a gift of the ore in the dumps.Takahashi later confirmed this transaction by giving Stanton a quitclaim deed to the mining claims.

Pursuant to his arrangement with Takahashi, plaintiff went upon the claims in April, 1952 and spent considerable time in prospecting and re-establishing the lines and corners of the claims as located by Takahashi.He also had the property surveyed by an experienced geologist and engineer named Westman.The survey indicated that the course of the vein or lode was different than as described in the claims filed by Takahashi and plaintiff decided to relocate the claims in conformity with the new survey.New location notices were not filed immediately but it appears that plaintiff and his employees were on the property completing the surveys and setting the corner and end posts prior to and at the time that the defendant Weber became interested in the mine.

In the middle of August, 1952 Westman told Weber about the property and introduced him to Stanton.After some negotiations Weber and Stanton entered into a written agreement dated August 28, 1952, under which Weber was given the right to process the ore in the dumps on the surface of the property.Under this agreement Weber was to pay all of the costs of processing the ore and the profits were to be divided 75 per cent to Stanton and 25 per cent to Weber.In executing the agreement, Weber recognized plaintiff's control of the mining claims and his right to dispose of the ore.

It is clearly established by the evidence that Weber insisted that the work of relocating the claims be completed before he started to perform his agreement to process the ore.At that time the survey had been completed and most of the claims had been posted but the discovery work had not been done.Stanton was unable to complete the discovery work immediately and to expedite the operation it was finally agreed that plaintiff would sign location notices in blank, that these notices would be filled out by Weber from information furnished by Westman and filed by Weber in the mining records of Crook county.It was also agreed at that time that Weber would complete the discovery work and file affidavits stating that it had been completed within the 60 day period allowed by law which would expire in mid-October, 1952.Weber denies that he ever agreed to do the discovery work or file the affidavits but the existence of such a promise is clearly established by the evidence.

It is admitted by Weber that he filled out the location notices that had been signed by plaintiff using the descriptions furnished by Westman and that these notices were filed in the mining records of Crook county on September 2, 1952.It is further admitted that Weber did not file proof that the discovery work had been done and that because of his failure so to do, plaintiff's attempted relocation of the claims was ineffective.

In attempting to procure equipment and make arrangements to process the ore, Weber encountered considerable difficulty.He apparently became dissatisfied with his agreement and by a letter dated October 24, 1952, notified Stanton that he had discontinued operations on the property until a more satisfactory arrangement could be made.

Stanton, in turn, became dissatisfied with Weber's failure to process the ore and by letter dated December 16, 1952, attempted to cancel his written agreement with Weber dated August 28, 1952, covering the processing of the ore in the dumps.Weber countered by hiring one Frank Reid to go on the property and relocate the claims.Reid set new corner and center end posts as closely as possible to the posts which had been set to mark Stanton's claims.Reid also sank new discovery shafts and Weber then filed new notices and relocated the claims.The Stanton claims which had been located as the Blue Ridge claims were relocated by Weber as the Winter Creek claims.The same legal descriptions were used in both instances.

When Stanton next visited the property in May, 1953, he learned for the first time that his mining claims had been jumped by Weber.In due course he filed this law suit to recover the property from Weber and for an accounting.

The evidence clearly establishes that in order to complete Stanton's relocation of these claims, Weber agreed that he would perform the discovery work on Stanton's behalf and file proof thereof.It is equally clear that Stanton relied on Weber's promise to perform the work on his behalf.It is not necessary to determine whether Weber's promise to do the discovery work was supported by any independent consideration.Consideration is not necessary to create an agency.The applicable rule is stated in the Restatement of Agency 2nd, § 16, as follows:

'The relation of principal and agent can be created although neither party receives consideration.

'Comment: a. Agency may result from a contract between the parties or it may result from a direction by a person to another to act on his account with or without a promise by the other so to act and with or without an understanding that the other is to receive compensation for his services if he does act.'

In Schafer v. Fraser, 206 Or. 446, 290 P.2d 190, 200, 294 P.2d 609, this court adopted the doctrine of promissory estoppel as stated in § 90 of the Restatement of Contracts, as follows:

'A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'

The principle of promissory estoppel is applicable to the law of agency.Section 378 of the Restatement of Agency 2nd is particularly pertinent in this case:

'One who, by a gratuitous promise or other conduct which he should realize will cause another reasonably to rely upon the performance of definite acts of service by him as the other's agent, causes the other to refrain from having such acts done by other available means is subject to a duty to use care to perform such service or, while other means are available, to give notice that he will not perform.'

Under the foregoing rule, Weber could not relocate these claims...