38 P. 127 | Or. | 1894
Opinion by
The record contains numerous assignments of error which have been ably presented and argued by counsel, but the assignment based upon the construction of the contract by the trial court is the only one necessary to consider at this time. It goes without saying that the
Now what are the stipulations of the contract in question? On the part of the plaintiff they are: (1) that he will mine on a certain piece of ground staked out by the agent of the company; (2) that he will clean, sack, and put in the orehouse all ore mined by him; (3) that he will timber any ground worked or caused to be worked by him. On the part of the defendant, the stipulations are: (1) that it will pay plaintiff twenty-three dollars a ton for ore mined by him when cleaned, sacked, and put in the ore-house; (2) that it will furnish a team to haul all necessary timber for the mine, and ore to the warehouse of the company; and (3) that it will not deprive plaintiff of his contract, and give it to another. These are all the stipulations on the part of either party. The contract makes no provision for its duration, or the area of ground the plaintiff shall mine out, or what quantity of ore defendant shall
“Where parties have entered into written engagements with express stipulations,” says Lord Denman, “it is manifestly not desirable to extend them by implications: the presumption is that, having expressed some, they have
Much stress was laid, at the argument, on the stipulation that defendant should not deprive plaintiff of his contract and give it to another, as evincing an intention that he should have the right to mine out all the ore to be found in the ground described in the contract, but we think it can bear no such construction. The stipulation seems to have been inserted in the contract to secure a preference to the plaintiff in the work of mining that particular piece of ground so long as the company should continue its business and need the ore therefrom, but not to obligate it to operate the mine, and receive and pay for ore mined by plaintiff, for any definite length of time. There is nothing in this stipulation which either expressly or by implication prohibited the defendant from discontinuing the operation of the mine at its pleasure, but only that so long as the mine should be in operation and it was receiving and handling ore from the land described in the contract it was bound to give plaintiff the preference in working it. This, it seems to us, is the manifest object of the stipulation. It follows from what has been said that the court below was in error in construing the contract as a binding obligation on the defendant to permit plaintiff to mine out all the ore contained in the land described therein, and for this reason the judgment must be reversed and a new trial awarded.
Reversed.