Alden v. Karrick , 11 Colo. 194 ( 1887 )

Stallcup, C.

It is apparent, from the terms of the contract, that Karrick was vested with ownership in and dominion over the interest conveyed to him by Alden, and that he was accordingly to keep and work or sell the same, to the end to reimburse himself for the debts by him assumed and paid, and to realize such further sums as he might thereby; with the proviso that out of such further sums so realized the same should go to the liquidation of the said $25,000. In the event of a sale the working of the mines by him would necessarily cease, but until a sale he was required to work the mines to the payment of said sum, at least so long as productive and profitable to that end. The liability to pay any part of the $25,000 was limited by the express provisions of the contract to the net surplus above the debts ■ assumed, which Karrick might be able to realize, either by a sale of this interest in the mines or by working the same. In order, therefore, to show a cause of action for a breach of this contract, it must appear from the complaint that such surplus was so realized, or that it could have been so realized. Thirty-eight thousand dollars was the amount of the debts assumed by Karrick. It will be seen that he was bound to pay this amount in any event, and that this seven-sixteenths interest in the mines conveyed to him constituted the only means for a return to him of this amount. A construction of the contract to the effect to deprive Karrick of this means of paying himself without paying the additional $25,000 would leave him helpless and the loser of $38,000, in case this interest in the mines was incapable of yielding the net surplus of $25,000. The language of the contract will not permit of any such unreasonable construction. If this interest in the mines was incapable of yielding any part of such surplus, by sale or working the same, then appellant has not been injured, and has no cause of action. In the complaint there is no allegation or claim that the mines ever had returned to Karrick, by sale or otherwise, the amount assumed and paid out by him, or that the mines were at all capable of producing a net profit for any purpose, either by selling them or by working them. There being no allegation of facts in the complaint showing that the said sale was fraudulent, or that it was not reasonable, or that said interest was capable of producing a net yield greater than the amount of the debts assumed and paid by Karrick, or that by the said sale enough had been realized, or could have been realized, to produce a surplus over and above such debts, the complaint was properly adjudged insufficient to show a cause of action, and the demurrer thereto was therefore properly sustained. Toombs v. Mining Co. 15 Nev. 444.

The judgment should be affirmed.

De France, 0., concurs. Rising, 0., dissents.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment of the district court is affirmed.

Affirmed.