Tyson v. Neill

• Decision Date: 21 November 1902
• Parties: TYSON v. NEILL
• Court: Idaho Supreme Court

70 P. 790

8 Idaho 603

TYSON v. NEILL

Supreme Court of Idaho

November 21, 1902

EJECTMENT-LEASE WITH OPTION TO PURCHASE.-In an action of ejectment, where the evidence shows that defendant is rightfully in possession of the demanded premises under a lease, and option to purchase the action must fail.

CONTRACT - COLLALATERAL, ORAL AGREEMENT - EVIDENCE. - Where parties enter into a contract, reduce same to writing, and state the details therein, and it appears to be complete upon its face the same cannot be defeated by showing a contemporaneous oral agreement not made after the execution of the contract, and there is no allegation of fraud or mistake in the procuring or execution of the contract.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Reversed and remanded. Costs awarded to appellant.

W. B Heyburn & E. M. Heyburn, for Appellant.

The written agreement which is found in the answer does not appear to contain a single sentence, phrase or word that needs explanation, and the testimony in this case was not offered for the purpose of explaining the written contract, but to set up a collateral agreement. In the instructions the court uses the term "the contract" just as he used it in the former, evidently considering the written instrument and the alleged collateral agreement as constituting one contract. The subject is completely briefed in Greenleaf on Evidence, sections 275, 305. Respondents move to dismiss the appeal on the ground that the undertaking is not in compliance with the requirements of the statute, section 4809 of the Revised Statutes. The law governing this question may be said to be entirely settled by this court. There are three cases in point: Kelly v. Leachman, 5 Idaho 521, 51 P. 407; Weil v. Sutter, 4 Idaho 748, 44 P. 555; Wallace v. McKinley, 6 Idaho 95, 53 P. 104.

Edwin McBee and W. T. Stoll, for Respondents.

A motion was made herein to dismiss the appeal. It was served on the twenty-fifth day of September, 1902, and at the same time a notice was given that it would be called for hearing upon the opening day of this court, to wit, on the morning of the sixth day of October, 1902. That motion is based upon the fact that two appeals were taken herein, to wit, one from the order overruling motion for a new trial, the other from the judgment, and but one undertaking is given in support of both such appeals, which undertaking does not refer to which appeal it pertains, or in support of which it is given, nor does it provide for the payment of costs of either one, or more than one of said appeals. This court has decided by an unanimous line of decisions that such an undertaking is insufficient for any purpose. (See Kelly v. Leachman, 5 Idaho 521, 51 P. 407; Wallace v. McKinley, 6 Idaho 95, 53 P. 104.) Our contention is, that the action of ejectment is properly brought. (Burnett v. Caldwell, 9 Wall. 290.) The rule seems to have been recognized by this court in Stockton v. Herron, 3 Idaho 581, 32 P. 257. A careful examination of the contract will demonstrate that the appellant was not required, under that contract, to do anything within any time. He might sit down and wait an indefinite time without performing or attempting to perform his contract, and no breach could be claimed by respondents, and no suit could be brought for damages. The amount provided to be paid, $ 6,000, might, according to the terms of that contract, never become due. That contracts lacks the element of mutuality, and for that reason is void. It is unreasonable and unfair, and for those reasons it is void. A case very much in point was passed upon by the supreme court of Michigan--Davie v. Lumberman's Min. Co., 93 Mich. 491, 53 N.W. 625. (Cummer v. Butts, 40 Mich. 322, 29 Am. Rep. 530.) This court had occasion to pass upon a somewhat similar question in Stockton v. Herron, supra, also in Bear Track Min. Co. v. Clark, 6 Idaho 196, 54 P. 1007.

QUARLES, C. J. Sullivan and Stockslager, J., concur.

OPINION

The facts are stated in the opinion.

QUARLES, C. J.--

This action was commenced by the respondents to recover in ejectment certain mining claims and damages. The defense set up in the answer is that defendants were in possession of said mining claims under a contract of purchase, which, upon inspection, appears to be a lease with an option to purchase. The purchase price mentioned in said contract is the sum of $ 6,000, and was to be paid under the terms of said contract as expressly provided therein, as follows: "All the net earnings, after working expenses are paid for--and by 'net earnings' is meant all the gold that is taken out of the said Gold Nugget and Sixteen to One placer claims after the men who are employed to work it properly are paid for their services, and the tools and all necessary supplies are paid for out of the gold taken out of the above-mentioned claims, then the said parties of the first part are to receive as their pay the remainder till the said six thousand dollars ($ 6,000) is all and fully paid, and when the said six thousand dollars ($ 6,000) is fully paid it is mutually agreed between the said parties of the first part and the said parties of the second part thereto that the above-mentioned parties of the second part, their heirs and assigns, shall have all the gold taken out of said Sixteen to One and Gold Nugget placer mining claims, and have a full and complete title in and to said claims inasmuch as it is in the right...