Westminister Corp. v. Neptune Uranium Corp.

• Decision Date: 17 October 1960
• Docket Number: No. 19073,19073
• Parties: WESTMINISTER CORPORATION, formerly Warren Oil and Uranium Mining Company, Plaintiff in Error, v. NEPTURE URANIUM CORPORATION, a Colorado corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 1095

355 P.2d 1095

144 Colo. 281

WESTMINISTER CORPORATION, formerly Warren Oil and Uranium

Mining Company, Plaintiff in Error, v. NEPTURE URANIUM CORPORATION, a Colorado corporation,

Defendant in Error.

No. 19073.

Supreme Court of Colorado, In Department.

Oct. 17, 1960.

Arthur W. Burke, Jr., Denver, for plaintiff in error.

Karl C. Brauns, Denver, for defendant in error.

KNAUSS, Justice.

We will refer to the parties as they appeared in the trial court, where defendant in error was plaintiff and plaintiff in error was defendant.

Plaintiff sought to recover $15,000 based on a written contract for the purchase and sale of certain mining leases. By this contract $5,000 was to be paid upon execution thereof and $10,000 within 90 days thereafter; the balance of the purchase price was to be paid in annual installments. The agreement provided, inter alia:

'It is mutually agreed that this agreement is subject to title approval by Attorney for party of the second part. Such title may be subject only to exceptions as are usual in title opinions of unpatented mining claims on the public domain. This agreement is also subject to approval of the assignment of the previously referred to leases by the land owners (leasors to first party) and to first party satisfactorily showing that it has complied with the laws of the State of Colorado and the United States and its own Charter and By-Laws in regard to this sale. In the event of failure of title, failure of approval of assignment of leases or failure to show compliance with the laws of the State of Colorado or the United States and Charter and By-Laws of the party of the first part all payments previously made by party of the second part shall be returned forthwith and this agreement terminated. All instruments and documents necessary to show compliance and approval as above shall be submitted to party of the second part within ten days from the date hereof and any objections made thereon shall be submitted to party of the first part within sixty days of the delivery thereof.'

It appears that at the time the contract was executed the plaintiff had not obtained the original lessor's consent to the assignment of the leases. However, within a few days after the execution of the contract, plaintiff obtained new leases which included the lessor's consent to assignment thereof. The entire transaction was then approved by counsel for defendant.

Upon execution of the agreement defendant went into possession of the properties and mined the same for a period of some four months.

At the time of the execution of the contract defendant delivered a check to plaintiff for $5,000, representing the down payment, which check showed on its face the following:

'Initial payment in behalf of Warren Oil & Uranium Mining Co. Inc. Good faith money to be replaced by a certified check when all legal papers have been cleared by Warrens Attorneys.'

Some three months after the delivery of this check it was presented for payment at the bank on which it was drawn and returned marked 'insufficient funds'. The $10,000 to be paid within 90 days after execution of the contract was not paid, and thereafter defendant voluntarily abandoned the property. Ore of some eight...