Tri-Bullion Smelting & Dev. Co. v. Ozark Smelting & Mining Co.

• Decision Date: 12 November 1918
• Docket Number: No. 2186.,2186.
• Citation: 176 P. 817,24 N.M. 651
• Court: New Mexico Supreme Court
• Parties: TRI-BULLION SMELTING & DEVELOPMENT CO.v.OZARK SMELTING & MINING CO.

24 N.M. 651

176 P. 817

TRI-BULLION SMELTING & DEVELOPMENT CO.

v.OZARK SMELTING & MINING CO.

No. 2186.

Supreme Court of New Mexico.

Nov. 12, 1918.

Syllabus by the Court.

When the lease provides for a notice requiring the tenant in the alternative, either to perform the covenant or relinquish possession, the notice must recite the breach or stipulation relied on with sufficient particularity to enable the lessee to correct his default.

Where a lease provides for its termination upon failure of the lessee to comply with any of the terms and conditions of the lease, after 30 days' notice of default and demand for compliance, a complaint filed in a suit for possession of the premises setting up defaults in the terms and conditions of the lease will not take the place of a notice provided for by the terms of the lease, under which the lessee is to have 30 days' time within which to comply.

Appeal from District Court, Socorro County; Mechem, Judge.

Action by the Tri-Bullion Smelting & Development Company against the Ozark Smelting & Mining Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Where a lease provides for its termination upon failure of the lessee to comply with any of the terms and conditions of the lease, after 30 days' notice of default and demand for compliance, a complaint filed in a suit for possession of the premises setting up defaults in the terms and conditions of the lease will not take the place of a notice provided for by the terms of the lease, under which the lessee is to have 30 days' time within which to comply.

Nicholas & Nicholas, of Socorro, and R. P. Barnes, of Albuquerque, for appellant.

Charles S. Reed, of Cleveland, Ohio, and James G. Fitch, of Socorro, for appellee.

ROBERTS, J.

This action was instituted in the court below by the Tri-Bullion Smelting & Development Company, a corporation, against the Ozark Smelting & Mining Company, a corporation, to cancel a certain lease contract, copy of which was made Exhibit A of plaintiff's complaint, and which lease contract covers certain mining premises therein described. The lease contained some 16 or more covenants on the part of the lessee to be performed. The complaint set out that the defendant has failed to keep and perform the covenants, terms, and conditions of said lease, in this: (a) It has not worked said mine so as to take out of the same the greatest amount of ore possible with due regard to the development and preservation of same as a working mine; (b) it has not worked said mine steadily and continuously from the date of the beginning of said lease as required by its terms and conditions; (c) it has not removed from this mine an average of 40 tons of ore per day for all working days since the 29th of October, 1915.

The sixteenth article of the lease contract was as follows:

“In the event the lessee shall fail to work the said mine in good workmanlike manner and to properly timber the same, so as to fully protect any ores not removed therefrom, or fails to comply with any of the covenants, terms, or conditions herein to be performed on its part, which failure may be prejudicial to the interest of the lessor, and such failure shall continue for a period of 30 days after written notice and demand shall have been made by the lessor upon the lessee, requiring performance on its part, then all rights of the lessee hereunder shall at the expiration of 30 days cease and terminate, and this lease be at an end.”

The complaint alleged that notice had been given in comformity with said sixteenth article, and set out as Exhibit B a copy of the notice. The notice reads as follows:

“As you are failing to comply with the various covenants, terms, and conditions to be performed by you under the existing lease between your company and the Tri-Bullion Smelting & Development Company, and as such failure on your part to comply with such covenants, terms, and conditions to be performed by you is resulting in a prejudice to the interest of the Tri-Bullion Smelting & Development Company, we hereby, under clause sixteenth of the existing lease between your company and the undersigned company, give you written notice and make demand upon you for performance on your part of all the covenants, terms and conditions of said lease to be performed by you, under the penalty at the end of thirty days from date hereof of having the said lease terminated by the said Tri-Bullion Smelting & Development Company.”

The complaint contained a second count which set up the same defaults as contained in the first and differed only from the first in respect to the notice. The second count relied upon the filing of a complaint in the district court of Socorro county for possession, in which...