Bishop v. Averill

ON PETITION FOR RE-HEARING.

Gordon, J.

The principal reason urged for a re-hearing of this case is that the appellant “ agreed to find a buyer,” and that “ it was plaintiff’s duty to effect a sale, and, having negotiated a contract of sale, it was his duty to see that the contract was performed.” Ve think the contract of May 3, 1895, became the substitute of all prior agreements on the subject of compensation. The cola-plaint is founded upon that contract. Paragraph 9 alleges that during the life of the original contract between respondents and Kerr, and without the knowledge of appellant, respondents entered into a new contract with Kerr, the effect of which was to cancel the former one in which appellant was interested. But it is argued that “ the record fails to disclose any evidence tending to show that the [old] contract would have been performed or that one dollar more would ever have been paid on it,” this contention being based upon the testimony of the agent for the purchaser.

But counsel overlooks other testimony which tended to show that at the time of making the last contract between respondents and Kerr, there were some thirty or forty men employed at the mine, and that the output of the mine for the month preceding the making of such contract was one of the best they had ever had.

Our attention is also called to the following provision of the agreement upon which the action is based:

“ It being understood that said commission is not to be paid unless the same is deposited in said bank under said agreement by said Kerr or his assigns.”

And it is argued that Kerr’s failure to keep the contract and deposit the money absolved and released respondents from all liability to appellant.

¥e think it does not follow that because Kerr failed to make the deposits provided in the old contract, such failure of itself terminated that contract. The provision by which time was made the essence was for the benefit of the respondents, and the right to enforce the contract belonged to the respondents, but the evidence in the case does not show that they ever attempted to do so. On the contrary, the evidence tended to show that during the lifetime of the contract, while the mine was being actually operated by the purchaser, the respondents voluntarily entered into a new agreement, under which, in disregard — as we think — of appellant’s right, the property was actually transferred to Kerr, and the old contract thereby terminated. This termination of the old contract resulted, not in consequence of the expiration of time, or of any provision contained in it, but solely because of the new contract which was made without appellant’s consent.

After a careful consideration of the able argument accompanying respondents’ petition, and a painstaking reexamination of the entire record, a re-hearing is denied.

Scott, O. J., and Anders and Dunbar, JJ., concur.