71 P. 538 | Or. | 1903
delivered the opinion of the court.
The single question involved is, was the trial court in error in granting the nonsuit? To determine this requires a brief statement of the evidence adduced pertinent to plaintiff’s cause: The plaintiff testified in substance, that he first went on the property in November, 1898; that he was out looking for magnesia ore and was referred to Thomason as a competent guide; that he made arrangements with him, as such, to take him to the locality of • the deposits; that while on the way Thomason took some ore from his pocket and inquired of the witness what it was, and, being informed that it was copper ore, replied, ‘ ‘ I have a little prospect over on the other side of the mountain, ’ ’ and requested witness to examine it for him; that, after going to the magnesia deposits, they went to the copper prospect; that Thomason showed witness where he had made a little cut three or four feet in width; and, employing his own language, the witness continued as follows: “He says, ‘'What do you think of that?’ and I says: ‘This only shows that there is mineral here. Can you show me any better showing than that?’ and he says, ‘Yes;’ and we went up on the croppings, and I saw there a vein about sixteen inches to twenty-four inches right in casing, — right in place; and I told him that he had probably a good thing here, and he said that he did not know what he had, and would like to know, and I told him that he had a very good prospect, for the showing made so far. He says, ‘If you want to go into this matter, you can buy an interest in here for about $300; ’ and I told him that that was out of the question; that I did not have the
Witness further stated that he had an assay made of the ore in Portland, and sent them a certificate of its value; that he
L. L. Perdue, a -witness for plaintiff, testified that he resided at Perdue, Oregon, and was postmaster there, and, being interrogated regarding the signatures to plaintiff’s Exhibit 1, he replied that he would not be positive as to the signature of Cantile thereto attached; that he might have signed it, but that he was not sufficiently acquainted with his handwriting to identify it as his, but recognized Thomason’s signature as genuine. The paper marked “Exhibit 1,” and introduced in evidence, is plaintiff’s alleged muniment of title, and is as follows:
“We, the undersigned citizens of the United States, residents of Douglas County, do hereby give J. H. Baum one third interest in mining claim Rainbow, Rainbow District, this 18th day of January, 1899. R. W. Thomason,
“Witness: LeonL. Perdue. L. Cantile.”
Plaintiff was not put in possession at the time, and makes no claim to have so entered in pursuance of the agreement until some time near the 1st of March, 1900, — about a year and five months after the alleged verbal understanding was had, — at which time, he relates, he went upon the mine, and engaged in work upon it by shoveling and holding the drill two and one half or three hours, and obtained some additional samples, which proved to be much more valuable than the first, assaying 17 per cent in copper. According to his statement, he then worked upon the property as owner, and counsel now urge that he was thereby placed in possession. It is not questioned that defendant subsequently excluded him therefrom. Now, does this disclose a consideration sufficient to uphold the writing as a deed or grant to a one third interest in the mine ? Although plaintiff testified subsequently that he was to use his “best efforts to place this propei’ty,” it was merely his own construction of the agreement; and we must, notwithstanding, assume that he was either to induce some one or more persons with capital to purchase, or to make advances upon some such consideration as an interest in the mine, or to furnish means for its development and operation upon some arrangement whereby the owners would profit by his services, and not that he was merely to disclose or lay the fact before persons possessing capital that Thomason and Cantile had or were possessed of such and such a mining prospect in copper ore, as otherwise we would have a perfect exemplification of a reduciio ad dbsurdum. No person of ordinary understanding would enter into any such an arrangement. . Upon the other hand, Thomason and Cantile’s performance depended upon plaintiff’s observance of his undertaking; the word “if” being employed, which is always expressive of a condition. The writ
We have thus treated this ease because it is further urged that, by reason of the curative act of the legislature of 1899 (Laws 1899, p. 63), this instrument became operative as a deed, notwithstanding the informality of its execution. It follows that the judgment of the trial court should be affirmed, and it is so ordered. Affirmed.