Teachenor v. Tibbals

• Decision Date: 03 August 1906
• Docket Number: 1742
• Court: Utah Supreme Court
• Parties: TEACHENOR v. TIBBALS

86 P. 483

31 Utah 10

TEACHENOR v. TIBBALS

No. 1742

Supreme Court of Utah

August 3, 1906

APPEAL from District Court, Salt Lake County; M. L. Ritchie, Judge.

Action taken by David W. Teachenor against William H. Tibbals. From a judgment dismissing the complaint, plaintiff appeals.

REVERSED AND REMANDED.

A. L Hoppaugh for appellant.

Henderson Pierce Critchlow & Barrette for respondent.

BARTCH C. J. McCARTY and STRAUP, JJ., concur.

OPINION

BARTCH, C. J.

This is an action upon contract to recover $ 318.75. It appears that on June 12, 1896, plaintiff being then the owner of an undivided one-fourth interest of the Liberal Lode mining claim, conveyed his interest therein to Thomas Marioneaux, for a consideration of $ 1,250, of which $ 400 were paid in cash. As to the balance, $ 850, the vendee, on the same day, made a written agreement with the vendor, which, so far as material here, reads as follows: "It is agreed that said first party [Marioneaux] will pay to the second party the additional sum of $ 850 out of the first net profits which may be derived by the first party from the sale of ores which may be hereafter extracted from said Liberal Lode mining claim; but said sum is not to be paid otherwise." Afterwards, H. C. Edwards negotiated with Marioneaux to purchase the interest, and, wishing defendant, Tibbals, to join him in the purchase, he explained the arrangements to him, and also the contract between Teachenor and Marioneaux. Tibbals then agreed to take three-eighths of Marioneaux's interest; and, at his suggestion, the property was deeded to one Doscher, as nominal owner, who was to convey to Edwards and Tibbals upon request. The deed was executed to Doscher on November 7, 1898, and the interest conveyed, subject to the aforesaid agreement. Tibbals, as shown in evidence, paid his share of the cash consideration, and agreed to pay three-eighths of $ 850, balance of the consideration, out of the first net proceeds of ore. On January 7, 1899, Doscher conveyed by quitclaim deed, subject to that agreement, the three-eighths interest to Tibbals. Thereafter, by quitclaim deeds dated October 26, 1899, and July 8, 1903, Tibbals and his associates conveyed for an express consideration of $ 30,000 the property to the Chicago & Bingham Mining Company, a corporation; the former deed bearing acknowledgment February 21, 1900. The defendant never paid his share of the $ 850, claiming no net proceeds of ore accrued before he sold his interest to the corporation. The cause was tried without a jury, and the court made findings in harmony with the claims and contention of the defendant, and entered judgment against the plaintiff dismissing the complaint, and for costs.

Upon this appeal the decisive question relates to the finding of the court, respecting the net profits of the mine, while the defendant owned his interest. The finding on this point, so far as material here, reads: "That between the 7th day of January, 1899, and the 8th day of July, 1903, there was extracted from said Liberal Lode mining claim ore of the value of $ 5,000, and that the cost of extracting said ore was the sum of $ 1,200; but how much thereof was extracted prior to February 21, 1900, is not shown by the evidence nor the cost of the extraction of said portion; and that no net profits were derived by the actual sale or disposal of ores from the said Liberal Lode mining claim during any of the time that said defendant was the owner of the part thereof belonging to him; but said ores after extraction remained upon the dump. That between July 8, 1903, and August 12, 1904, there was extracted from said mine ore of the value of $ 25,000 and that the cost of extraction and marketing the same was about one-fourth the value thereof, leaving net profits of about $ 18,000." The appellant contends that that part of this finding, where it is in effect found that there was no evidence to show how much ore was extracted prior to February 21, 1900, the date of acknowledgment of the first deed, from Tibbals and others, to the corporation, and that no net profits were derived from the disposal of ores during the time defendant owned his interest, is not in accordance with the proof and is erroneous, and that the court erred in refusing to enter judgment for the plaintiff.

Upon careful examination of the evidence in connection with the agreement referred to, we are of the opinion that this contention is sound. With reference to the extraction of ore and net proceeds, the witness Edwards testified, in part, as follows: "Between the 7th day of January, 1899, and the 8th day of July, 1903, there was in the neighborhood of $ 5,000 worth of ore extracted from the mine. The cost of extracting it was about $ 1,200. The value of the ore was $ 5,000. Between the 8th day of July, 1903, and the 3d day of August, 1903, there was $ 25,000 worth of ore extracted...