OPINION TEXT STARTS HERE
Appeal from District Court, Hamilton County; R. M. Wright, Judge.
The plaintiff, besides operating a hotel at Granite, Ore., had certain mines known as “Morris mine” and “Alice A.” The latter was a placer mine, “just a mining claim located”; but the former was a quartz mine to which a patent had issued. In the summer of 1904, several persons in Hamilton county, aided by others in Palo Alto and Pocahontas counties, were induced to enter into an agreement with plaintiff, by the terms of which plaintiff, as party of the first part, undertook to convey by warranty deed the “Morris mine” and the “Alice A” by special warranty deed to the “Iowa Oregon Company, a corporation organized under the laws of Oregon, and deliver to it a good and sufficient abstract of title” showing a clear and unincumbered title in said grantor for the said “Morris mine” and a clear and sufficient title to said grantor for the said “Alice A,” except such interests as the United States have therein. And in consideration said persons, as “parties of the second part, do hereby agree to pay for one-half (1/2) of the capital stock of said ‘The Iowa-Oregon Company,’ the sum of twenty thousand dollars ($20,000.00) at the following times and in the following manner, to wit: Ten thousand dollars ($10,000.00) cash and ten thousand dollars ($10,000.00) within one year from the date hereof, of which each of the said second parties do hereby bind themselves to pay only in proportion to amount of stock subscribed by each respectively, and nothing in this paragraph shall be construed to in any manner bind or make liable any of the said second parties for any sum or sums either in cash or time payments, other than that for which he himself subscribed.” Then followed stipulations that the capital stock of said company be 250,000 shares of par value of $1 each, of which 90,000 shares should be placed in the treasury as treasury stock, one half to be contributed by the party of the first part, and the other half by the parties of the second part, to be sold as directed by the board of directors at not less than par value until otherwise ordered and the proceeds expended in development of the property. “The remaining capital stock, consisting of one hundred and sixty thousand (160,000) shares, of which eighty thousand (80,000) shares are subscribed for by the party of the first part and eighty thousand (80,000) shares are subscribed for by the parties of the second part, shall be placed in the First National Bank of Baker City, Oregon, subject to the following conditions, to wit: Said board of directors of the said Iowa Oregon Company may at any time make demand on said bank to deliver to them or their duly appointed agent any number of shares of the stock belonging to the said second parties, upon the payment or tender to said bank the sum of twenty-five cents (0.25) per share for each and every share so demanded, which said sum of twenty-five cents (0.25) per share by said bank is to be placed to the credit of the said party of the first part, and said bank is here authorized and empowered to fill in a certificate in proper manner designating the number of shares for which said certificate shall be issued as per order, from the said board of directors of the said ‘Iowa Oregon Company,’ setting out the names of the persons or person to whom said stock certificate is to be issued and the same forwarded to the secretary of the said company, who shall have the same properly executed, and all sums of money arising from the sale of any of the said stock so obtained by the said board of directors shall be placed to the credit of the parties of the second part in the aforesaid bank of Baker City, Oregon, the same to be applied so far as may be necessary toward the payment of any balance due the party of the first part at the time of the maturity of the said final ten thousand dollar payment, and the balance remaining after the said final payment to said party of the first part, shall be paid to the parties of the second part according to their respective interests as indicated by the number of shares held by each of said second parties. It is expressly agreed and understood by and between the parties hereto that the said second parties shall pay or cause to be paid into the said bank the sum of ($10,000) ten thousand dollars to the credit of the said party of the first part, within one year from the date hereof binding themselves individually each for his proportionate share as indicated by the number of shares of said stock held by him, but nothing herein shall be construed to hold any of the said second parties liable for any greater part of the said sum of ten thousand dollars than is by himself subscribed and paid. * * * It is further agreed and understood that in the event of the failure of any of the parties of the second part to pay his proportionate share of the remaining ten thousand dollars ($10,000), as indicated by the amount of stock subscribed by him, the said board of directors shall cause, place or cause to be placed on the open market, the mining stock, a sufficient amount of his shares of said stock, and cause the same to be sold for the highest price obtainable, and the money so obtained shall be placed to the credit of his shortage with the party of the first part and any of the shares remaining after the said shortage has been paid shall be the property of the said delinquent party, but should the number of shares subscribed by the said delinquent party be insufficient upon sale of the...
