Maddocks v. Zimmerman , 6 Alaska 249 ( 1920 )

BUNNEEE, District Judge.

In order to determine what was intended by the parties to this contract on the date of the execution of the same, since it is lacking in detail, and from the pleadings it is apparent that there is a diversity of opinion as to its interpretation by plaintiffs and defendant, the court has admitted much testimony that otherwise should properly, be excluded. The consideration is expressed, and is not denied, and there can be no question about it being intended by all parties that the undivided one-half interest'in the Rainbow claim belonging to the defendant, together with all the right, title, and interest of the plaintiffs in and to the personal property described in plaintiffs’ bill of sale to the defendant under date of June 17, 1914, should be impressed with a lien in the sum of $14,500. This is the lien they made by their contract, and the court will not disturb it. They were parties capable of contracting, and the subject-matter was properly the subject of contract.

There is a preponderance of evidence to show that the agent and attorney in fact of the defendant gave the plaintiffs to understand that the property would be mined, and that the defendant was in a better position than the plaintiffs to accomplish such a result. The testimony is conflicting, but in weighing it one must bear in mind that the paramount purpose of the de- " fendant was to get possession of the property and eliminate what she believed had been gross mismanagement in the past. On the same day that she impressed this property with a lien, she and her co-owner entered into a contract with Drury, providing therein fop the working of the property. The entire testimony shows that all parties looked forward to an immediate development and operation of the claim. The defendant reserves to herself only that she incur no personal liability. There is no testimony to show that the defendant did not intend to mine the property. Likewise there is nothing to show that she ’intended to prevent it from being mined. It naturally follows, just as the evidence discloses, that at the time the parties thereto entered into the agreement of June 17, 1914, it was with the expectation that the property would be forthwith mined. The defendant reserves to herself but one condition, and that is that she incur no personal liability. But, even if the plaintiffs had offered no evidence .to show a contemporaneous agreement to operate the property, the contract itself contains an implied agreement that the property shall by the mining thereof discharge either in whole or in part the lien with which it is impressed. In principle I can see no distinction between the case of Pritchard v. McLeod, 205 Fed. 24, 123 C. C. A. 332, and the case at bar. In that case the property under the contract of sale by the nature of the transaction was impressed with a lien for the unpaid portion of the purchase price. Here the owner for a valuable consideration by her fixed and determined, and it must be presumed.for her benefit, impresses her property with a lien. The difference in facts in the two cases does not change the equitable principle involved.

This action was not instituted until nearly five years after the contract of June 17, 1914. It is now nearly six years since the plaintiff Roth surrendered possession of the premises. The evidence does not show on the part of the defendant what a court of equity can properly say is a reasonable diligence on her part to either sell or lease the property. Diligence means more than being in a receptive frame of mind to entertain an offer. It means to exert one’s self; to make earnest endeavor. In this case opportunities for the defendant to sell or lease the property seem to have originated generally through the efforts of the plaiñtiffs to have the defendant make some disposition of the property. These efforts on the part of the plaintiffs were without results, because, as the evidence discloses, no proposition would be entertained by the defendant, if it would permit the husband of the plaintiff Maddocks to be interested in the management of mining operations upon the Rainbow claim.

The position taken by the defendant is that she may continue to decline to lease or sell the property until such time as in her opinion -the conditions are more favorable for mining. Much testimony has been submitted to show that the cost of mining is greater than it was in 1914. It can well be admitted that not only does it cost more to mine now than it did in 1914, but that it costs more to operate every othefi kind of industry. The evidence does show, however,’ that this particular property can be operated at a small profit.

A decree of foreclosure may be entered in accordance with the prayer of the plaintiffs’ complaint, provided, however, that no sale of the property shall be had if the defendant within 60 days from this date pays to the plaintiffs herein the amount of their lien in the sum of $14,500.

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