109 Mo. App. 678 | Mo. Ct. App. | 1904
This action was brought to recover the amount of two non-negotiable promissory notes ex-
Defendants’ answer set up tbe defense of failure of consideration. Tbe answer likewise alleged that the notes were obtained by Berry by false and fraudulent representations. But such allegations merely related to tbe subject-matter of tbe consideration moving defendants to execute tbe notes. No damages general, special or consequential by way of counterclaim or otherwise were set up in tbe answer. Tbe consideration of tbe notes was shown to be $150 in money, some mining tools and a transfer of a mining right or license to mine ore on tbe Center creek company’s mining ground in Jasper county. Defendants got tbe money and property of tbe plaintiff, and yet tbe verdict and judgment were against plaintiff in toto.
Tbe judgment can not stand. If.it be conceded that tbe transfer of tbe lease or right to mine failed for lack of title in Berry, yet that was only a part of the consideration for tbe notes in suit, and there should not have been any instructions for defendants on the hypothesis of a total failure. [Overstreet v. Beasley, 60 Mo. App. 315.]
Tbe only difficulty in tbe case relates to tbe transfer of tbe license or lease. Defendants entered into possession and operated tbe mines under tbe terms of tbe lease for a considerable period of time. But it seems that under the statute (section 8766, Revised Statutes 1899) mining companies, such as tbe Center creek company, may make rules and regulations concerning mines and tbe right to operate tbem. That among tbe rules of tbe Center creek company was one requiring all entering upon tbe same for tbe purpose of mining to register by signing on a book of registry. Tbe statute aforesaid does not, itself, require a registry. Tbe statute is that, all persons mining on such
Our interpretation of the .statute is that while (as just stated) it does not require the licensee to sign the register or rules of the company, it does authorize ' the company to make rules; and in this case one of those rules was that those wishing to mine should register. A failure or refusal to register is a violation of the rules and, under the statute, the right to mine may be forfeited. But if the owner knowingly permits the licensee to enter and carry on mining without requiring him to sign, he can not forfeit the right of the miner without, first offering him an opportunity to sign. If the miner should then refusp, he would be violating the rules. But certainly when he enters and mines without signing, with the affirmative or silent assent of the owner, such owner ought not to be allowed to forfeit his rights, when he is willing to sign.
Applying the foregoing to the facts of this case', we find that defendants contend that Berry represented that he had signed the register when he had not. But it appears, without dispute, that the owner had never objected to the mining on that account and that defendants actually entered and carried on mining and made reports thereof for a long period of time without dissent or protest from the owner. The owner never made any attempt to interfere with defendants, but they though prospering at first, begun to lose in the venturé
In the situation in which the parties were thus placed, these defendants would have had the right, themselves, to sign and thus cure whatever trouble there might be on account of there being no signing in the first instance. It follows that, under the circumstances herein stated, the mere fact of the rules not being signed was an immaterial matter which could have been cured, if the owners had required, by the mere signing of a name. The case for defendants was tried on a theory altogether out of harmony with what we have said. The plaintiff’s instruction in the nature of a peremptory direction to find for him should have been given.
The judgment is reversed and the cause remanded with directions to enter judgment- for plaintiff for the notes and interest and penalty as therein provided.
