Tungsten Products, Inc. v. Kimmel, 27897.
| Decision Date | 03 October 1940 |
| Docket Number | 27897. |
| Citation | 105 P.2d 822,5 Wn.2d 572 |
| Parties | TUNGSTEN PRODUCTS, Inc., v. KIMMEL et al. |
| Court | Washington Supreme Court |
Department 2.
Action for the rescission of a mining lease by Tungsten Products Incorporated, a corporation, against Offa M. Kimmel and others. From a judgment for the plaintiff, defendants appeal and plaintiff moves to dismiss the appeal.
Motion to dismiss appeal denied, and judgment modified and remanded with directions.
Appeal from Superior Court, Stevens County; M. E. Jesseph, judge.
Post Russell, Davis & Paine and Stimson & Donahue, all of Spokane for appellants.
Gleeson & Gleeson, of Spokane, for respondent.
The defendants, Offa M. Kimmel, Mabel Kimmel, Keturah C. Kimmel, A. W. Kemp and J. M. Fitzpatrick, are the owners, as tenants in common, of mining contracts or leases to certain state lands in Stevens county. July 28, 1938, the defendants entered into a contract for the sale of their interests to plaintiff. Plaintiff paid $2,000 in cash upon the contract price of $152,000. The balance was to be paid out of royalties from the proceeds of sales of minerals extracted from the property. Among the covenants undertaken by plaintiff was one to the effect that 2,080 man hours of work per month should be done in the development and improvement of the property. November 30, 1938, plaintiff ceased all operations, and it has performed no work in the development and improvement of the property since that date.
January 28, 1939, defendants, pursuant to the terms of the contract, gave notice to plaintiff that the contract was in default because the stipulated hours of work had not been performed in the month of December. Thereafter plaintiff brought this action for rescission, alleging that on November 30, 1938, defendants had agreed to suspension of work on the property for a period of ninety days. This defendants denied. Affirmatively they alleged default and claimed a forfeiture.
The trial court found that defendants had agreed to a suspension of work for ninety days; that the contract was not in default on January 28, 1939, when defendants gave notice; that the claim of default amounted to a breach of the contract by defendants which entitled plaintiff to rescind. From a decree accordingly entered, defendants appeal.
Respondent moves to dismiss the appeal on the ground that the appeal was not timely taken. Subsequent to the entry of the decree a motion for new trial was interposed which was overruled September 1, 1939. Notice of appeal was given Spetember 28. As we understand it, respondent contends that, because no specific assignment of error was made to the order denying the motion for new trial, appellants waived their motion and that, in consequence, time for giving notice of appeal began to run from the date of judgment (August 14). No authority has been cited in support of the contention and we think it is without substance. This court has at all times been committed to the rule that, where a motion for new trial is made subsequent to the entry of the decree, the time for giving notice of appeal begins to run from the time of entry of an order denying a new trial. Bezich v. Columbia Insurance Co., 168 Wash. 379, 12 P.2d 413.
The finding of the trial court that appellants had agreed to the suspension of work on the property for a period of ninety days was based on the theory that Offa M. Kimmel was the agent of the other appellants. That he himself actually made such an agreement on November 30, 1938, cannot be doubted. That he had authority to speak for his associates is another matter. It is alleged in the complaint and admitted by the answer that appellants held the leases from the state as tenants in common--each owning an undivided one fifth. The mere fact that they were tenants in common did not in itself confer upon Offa Kimmel the powers of an agent for the others. It is well settled that one co-tenant cannot do anything with respect to the common property binding upon his co-tenants unless they may have authorized or ratified his act. No agency by implication arises our of his act merely from the relationship of co-tenancy. Rowe v. James, 71 Wash. 267, 128 P. 539; Hamilton v. Johnson, 137 Wash. 92, 241 P. 672; Lonnqvist v. Lammi, 242 Mass. 574, 136 N.E. 610; Goff v. Lowe, 101 W.Va. 57, 131 S.E. 870. The rule has been specifically applied in cases such as this--where one co-tenant has attempted to waive the forfeiture clause of a contract or lease. Wally v. Jones, 275 Pa. 250, 119 A. 75; Penrose v. Penn Forest Coal Co., 289 Pa. 519, 137 A. 670.
Respondent invokes the doctrine of 'apparent authority'. The application of that doctrine presupposes the establishment of the relationship of principal and agent. Here we find nothing in the record--no act or word on the part of Offa Kimmel's co-tenants--which would authorize him to speak for them in agreeing to the suspension of work on the property. Indeed, it is hardly inferable from the record that Kimmel even pretended to speak for his co-tenants when the matter of suspension of work came up for discussion. The president of the respondent, after relating the conversation with Kimmel in which the latter agreed to a suspension of work for ninety days, testified:
To continue reading
Request your trial
-
Dunseath v. Hallauer
...Wash. 379, 12 P.2d 413; Smith v. Kneisley, 184 Wash. 26, 49 P.2d 916; Sitko v. Rowe, 195 Wash. 81, 79 P.2d 688; Tungsten Products, Inc. v. Kimmel, 5 Wash.2d 572, 105 P.2d 822; Roesch v. Gerst, 18 Wash.2d 294, 138 P.2d 846; Wilson v. Katzer, 37 Wash.2d 944, 226 P.2d As to filing statements o......
-
Carr v. Deking
...to third persons. Reinhart v. Centennial Flouring Mills Co., 6 Wash.2d 620, 623-24, 108 P.2d 377 (1940); Tungsten Prods., Inc. v. Kimmel, 5 Wash.2d 572, 575, 105 P.2d 822 (1940); 86 C.J.S., § 113, at 519. The lessee "steps into the shoes" of the leasing cotenant and becomes a tenant in comm......
-
Cal-Am Corp. v. Spence, CAL-AM
...paid" and this makes it even clearer that Spence is not entitled to recover sums due but not received. Cf., Tungsten Products, Inc. v. Kimmel, 5 Wash.2d 572, 105 P.2d 822 (1940). It is important to emphasize that in a lease of this type, there are valid reasons for providing that a landlord......
-
Rider v. Cottle
... ... White, 104 Wash. 643, 177 P. 667; ... Tungsten Products, Inc., v. Kimmel, 5 Wash.2d 572, ... 105 ... ...
-
CHAPTER 1 LIABILITIES OF NONOPERATING INTEREST OWNERS
...Groves, supra note 1, at 235-45; 2 C. Lindley, supra note 1, §§ 788-92. [49] Tungsten Products, Inc. v. Kimmel, 5 Wash. 2d 572, 105 P.2d 822, 823-24 (1940); see Taylor v. Brindley, 164 F.2d 235, 240 (10th Cir. 1947); Myers v. Crenshaw, 116 S.W.2d 1125, 1129 (Tex. Civ. App. 1938), aff'd, 134......
-
CHAPTER 7 LIABILITIES OF NONOPERATING OIL AND GAS INTEREST OWNERS
...Groves, supra note 1, at 235-45; 2 C. Lindley, supra note 1, §§ 788-92. [49] Tungsten Products, Inc. v. Kimmel, 5 Wash. 2d 572, 105 P.2d 822, 823-24 (1940); see Taylor v. Brindley, 164 F.2d 235, 240 (10th Cir. 1947); Myers v. Crenshaw, 116 S.W.2d 1125, 1129 (Tex. Civ. App. 1938), aff'd, 134......
-
CHAPTER 3 PERFORMANCE OF THE LEASE ROYALTY CLAUSE: WHOSE RESPONSIBILITY IS IT?
...Phillips v. Homestake Consolidated Placer Mines Co., 51 Nev. 226, 273 P. 657 (1929); Tungston Products, Inc. v. Kimmel, 5 Wash. 2d 572, 105 P.2d 822 (1940); Taylor v. Brimley, 164 F.2d 235 (10th Cir. 1947); Zimmerman v. Texaco, Inc., 409 S.W.2d 607 (Tex. App. 1966). [18] Edwards v. Hardwick......