54 P. 1007 | Idaho | 1898
— This action was commenced by the plaintiff, a corporation, as assignee of one H. 1L Moore, to obtain a decree for specific performance of a contract relating to the conveyance of an undivided one-half interest in and to a certain un-patented mining claim. The description of the property and the allegations of the contract are contained in paragraphs 2
“Lewiston, Idaho, Nov. 22, 1895.
“This agreement, made and entered into this twenty-second day of November, 1895, by and between John Clark, of Florence, Idaho, and H. K. Moore, of Moscow, Idaho, parties of the first and second part, respectively, witnesseth: For and in consideration of the following development work on the Bear Track quartz claim, at Florence — i. e., sinking ten feet of shaft at bottom of present shaft, and twenty feet of tunnel from a point in shaft (30) thirty or more feet below surface, said EL K. Moore, party of the first part, is to have one-half interest in and*200 to said Bear Track quartz claims. That, if the foregoing conditions are fulfilled, it is further agreed by said John Clark that he will sell to said second party an undivided one-fourth interest to and in the Bear Track ditch and water right, for the specified sum of ($600.00) six hundred dollars. That, if it seems advisable, said H. K. Moore is to relocate said claim, said John Clark at all times having an undivided one-half interest in said claims. That, if Chris Arnold claims a one-half interest to and in the Bear Track claim, he is to pay the sum of seven hundred fifty-six and 50-100 dollars, which is a lien against his interest and all other expenses which may be incurred in working the mine.
(Signed) “JOHN CLABK.
(Signed) “H. K. MOOEE.”
The answer alleges that, at the time of signing said agreement, the defendant objected to it, on the ground that it did not contain all of the terms agreed upon; among other things, that it did not provide for the payment to defendant of the said sum of $756.50, and that defendant misunderstood several of the provisions in said written contract, and thought that other provisions agreed upon were in said written agreement when he signed it, but which were omitted. To prove its case, the plaintiff called said H. K. Moore as a witness, who testified that the contract was made at Lewiston, and partly reduced to. writing, other material parts — that portion relating to the time of performance — being left out of the contract.
Without considering or passing upon the question arising under the statute of frauds, raised by the appellant, and numerous other questions presented in the record, we think that the plaintiff is precluded from the relief sought, on the ground that there is no mutuality in the contract, and it is nor based on an adequate consideration. The defendant was the owner of an undivided one-half interest in and to the property in dispute. There is no valuable consideration moving from the plaintiff or its assignor to the defendant, according to the showing of the plaintiff. Hnder the allegations of the complaint and the evidence introduced upon the trial, said Moore was to do certain work upon the property in dispute, whereupon the defendant,