DocketNumber: No. 993
Citation Numbers: 1 Cal. Unrep. 322
Judges: Currey, Rhodes, Sander, Sawyer, Shafter, Son
Filed Date: 12/17/1866
Status: Precedential
Modified Date: 1/12/2023
The complaint admits the payment of the first two hundred and fifty dollars at the agreed date, and the payment of the second two hundred and fifty dollars at the “pumping out of the claim”; and seeks a recovery of the sum of twelve hundred and fifty dollars first mentioned in the agreement, on an averment that “the defendant, deeming it necessary, caused machinery to be erected and added for the crushing of quartz taken from said lode. ’ ’ The question presented is whether the liability of the defendant to pay the twelve hundred and fifty dollars sued for is made by the contract to depend upon the erection of machinery to the exclusion of every other condition. The question may be treated as arising upon demurrer or motion in arrest.
The contract lacks precision and some of its provisions seem at first blush to be contradictory. For instance: the first two hundred and fifty dollars is made payable absolutely on a day named, and the second two hundred and fifty dollars absolutely on the happening of a certain event; and still the last clause of the instrument provides that “if the claim should fail to pay after testing that the contract is to be null and void.” Still these apparently conflicting provisions may be reconciled when all the terms of the contract are viewed -in relation. The liability to pay the first two hundred and fifty dollars was intended to be absolute — maturing by the mere lapse of time; and the liability to pay the second two hundred and fifty dollars was also made absolute by intention on the happening of the event specified; and the last clause providing that the contract should go for naught in the event that the claim should fail to pay after testing, was intended to be limited to the two thousand five hundred dollars — for the liability to pay that sum is made by a preceding clause to depend upon how the mine should stand testing. If it could be worked at a profit, then when the profits amounted to two thousand five hundred dollars, that sum was to be paid to the plaintiff, but if the claim should fail to pay after testing, or fail to pay
Taking the question upon the findings however, they fully support the judgment. And if the decision be considered in connection with the evidence, there is nothing in that tending to prove that the defendant ever realized anything from the claim over and above his outgoes, though there is some tending to prove that the mine was not or may not have been altogether valueless.
It is urged that there was evidence to the effect that- the defendant had never tested the mine but had sold and conveyed it to a company of which he was a member and trustee, and that he should therefore be beld liable for the twelve hundred and fifty dollars. One answer to the objection is, that the cause of action stated in the complaint is not put upon that, but upon a very different ground. Whether there are any other answers to the objection it is not necessary to consider.
Judgment affirmed.