116 F. 582 | 9th Cir. | 1902
This was a suit for the specific performance of the following written instrument, executed by the respective parties on the 19th day of January, 1899, at St. Michaels. Alaska:
“This agreement, made and entered into this 19th day of January, A. D. 1899, by and between E. Engelstad, the party of the first part, and J. A. Dufresne, the party of the second part witnesseth: That the said party of the first part, in consideration of the covenants and agreements hereinafter made by the said party of the second part, hereby covenants that he, the said party of the first part, will give an undivided one-half net interest in the claim selected by the said party of the second part from claims owned and*800 operated by the said party of the first part or his agents, said mining claims being situated in the Cape Nome mining district, district of Alaska, and known and designated as follows, to wit: Claim No. 4 below on Mountain creek; claim No. 1 below on Extra Dry creek; claim known as ‘Yugar’; claim known as ‘Rock Creek,’ 1,000 feet by 660 feet; claim known as ‘Lone Star Claim,’ Joe’s gulch, tributary to Dexter creek,* claim No. IS below on Dry creek; Claim No. 3 below on Glacier creek, an undivided one-half; claim No. 2 below on Lindblom creek, 500 feet by 1,000 feet; claim No. 12 on Anvil creek, an undivided one-half. And the said party of the second part, for and in consideration of the covenants and agreements of the said party of the first part, hereto covenants and agrees to and with the said party of the first part that the said party of the second part hereto will give one-half interest in claim No. 10 on Dexter creek, situate in the Cape Nome mining district, district of Alaska, owned and operated by the said party of the second part. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.
“Edwin Engelstad. [Seal.]
“J. H. Dufresne. [Seal.]
“Signed, sealed, and delivered in the presence of:
“W. Alex. Hudson.
“H. G. Stevens.”
The bill sets out the contract in hsec verba, and alleges that the complainant, prior to its execution, discovered gold upon the claims of which he is stated in the contract to be the owner, and located the same under and in pursuance of the laws of the United States and of the local rules and regulations of the mining district in which they are situated, ever since which time he has been the owner and in the possession thereof, and engaged in the operation of the same; and that the defendant is, and has been during the same time, the owner of a claim known as “No. 10 on Dexter Creek,” having theretofore discovered gold thereon, and having theretofore located the same under and in pursuance of the same laws, rules, and regulations, and having during the same time been in the undisputed possession thereof, operating the same for mining purposes, and extracting therefrom large quantities of gold. It is alleged that prior
The answer of the defendant puts in issue each and all of the allegations of the bill, except that alleging the execution of the contract sued on, which the answer admits to have been signed by the respective parties, but which it alleges was entirely without consideration; and for further and separate defense alleges: “That prior to the 17th day of August, 1899, and before the time that C. E. Hoxie, acting or pretending to act as attorney in fact for the plaintiff herein, demanded that defendant select one of the claims described in the plaintiff’s complaint and said agreement, and mentioned in the demand referred to in plaintiff’s complaint, the defendant requested the plaintiff to open up, develop, and operate the placer mining claims alleged to have been acquired and owned by the plaintiff, and more particularly described in the alleged agreement, so that the defendant might be able to form some opinion of the value of said claims,, in order to make an intelligent selection in reference to the relative values thereof; that the plaintiff then and there refused to do so, and informed defendant at that time that he would not operate said claims, nor any of them; that thereupon the said defendant rescinded said agreement, and informed the plaintiff that he would not convey to l]im an undivided one-half interest in No. 10 on Dexter creek, or any part thereof, for the reason that the said plaintiff refused to open up, operate, and develop the claims alleged to be owned by him, and mentioned in said contract, and demonstrate the values thereof.”
The answer further alleges that the complainant never opened up, prospected, developed, nor operated any of his alleged claims so that the value thereof could be ascertained, and that the defendant has had no opportunity of acquiring any information from any source concerning their value, and that the complainant has, with intent to defraud the defendant, purposely refused to open up, develop, or prospect any of his alleged claims, or to give the defendant any opportunity of ascertaining their value, by reason of which the defendant has been unable to make any selection
It further appears from the record that on the 7th day of January, 1901, the cause was, upon the application of the defendant, ordered by the court to be placed on its trial calendar, and that on the 31st day of the same month, it being about to be reached for trial, the complainant moved for a continuance of the cause for the term, upon the affidavit of Charles E. Hoxie, which stated that he is attorney in fact for the complainant, and that, after fully and fairly stating the complainant’s case to his attorney, he was advised and verily believed that the complainant had a good cause of action on the merits, and that he could not safely go to trial at that term of the court because of the complainant’s absence from the district; “that the plaintiff is the sole and only witness in rebuttal to the testimony of the defendant or the allegations of said answer; that said suit has been pending and ready for trial during the season of 1900, and the defendant (plaintiff) was present in Nome City, and in attendance upon this court, for the purpose of testifying in said cause, but was compelled to go to the
It is insisted upon the part of the appellant that the court erred in denying the motion for a continuance of the trial. We do not think so. It appears from the affidavit upon which the motion for the continuance was based that the complainant in the cause, with full knowledge of its pendency and of its readiness for trial, left the district in which it was pending, upon some other business of his own, which, for aught that was made to appear, may have been of far less importance than the suit which he had instituted. Having voluntarily absented himself from the district in which he knew the suit was to be tried, without having procured, or even made application for, a continuance of the trial thereof, and without having made, or even attempted to make, so far as appears, any arrangement for the taking of his testimony, he cannot be heard to complain that the case was tried in its regular order in his absence. The referee, upon the evidence introduced by and on behalf of the respective parties, found as a fact, among other things, that at the time of the making of the contract sued on the complainant and defendant “orally agreed and understood that each should have title to the mining
It appears that during the fourth day of the proceedings before the referee, the complainant asked that the further taking of testimony be adjourned for such a time as would enable him to obtain the testimony of Stephen Ivanoff, basing the motion upon an affidavit of Hoxie to the effect that Ivanoff, if present, would testify that he was the original locator of placer mining claim No. 12 above discovery on Anvil creek, and that prior to the making of the location he discovered gold thereon, and that the boundaries were properly marked by him, and the claim otherwise properly located, an undivided one-half interest in which he afterwards conveyed to the complainant, Engelstad, for a valuable consideration; and “that he has caused the said claim to be opened, operated, developed, and prospected, so as to demonstrate the character of the ground and the value of the claim; and that he was in possession of said claim prior to August, 1899, and was engaged in opening, working, and operating said claim at said time on behalf of himself and plaintiff in this suit” (Engelstad); that those facts could not be proved by any other witness to the knowledge of affiant, and that Ivanoff was then residing at Unalaklik, Alaska, and that the reason a subpoena had not been'issued for him “is that since the reference of this cause there has been no opportunity, on account of the climatic conditions, lack of communication, and the distance to said Unalaklik from Nome, to obtain the presence of said Ivanoff; that, if this cause is continued, the plaintiff will be able to obtain the testimony of the said Ivanoff before said referee; that said Unalaklik is a distance of about three hundred miles from Nome, and on account of the uncertainty of the weather, and storms, and the inconvenience of traveling, and the danger incident thereto, and the delays connected therewith, it will be necessary that this cause be continued for two months” to obtain the testimony desired. The referee denied the motion for a continuance, to which action the complainant excepted, and here assigns the ruling as error. It is a sufficient answer to this assignment to say that such testimony on the part of Ivanoff would not have been admissible under the averments of
There are 47 assignments of error in all, many of which do not conform to the requirements of rule 24 of this court (11 C.C.A. xcv, 47 F. xi). Most of them relate to alleged errors committed by the referee in admitting or excluding testimony. In considering such specifications in an equity suit tried before the judge without a jury, or by a referee, who reports the evidence as well as his findings to the court, the appellate court ought not to reverse the cause merely upon the ground that the referee received irrelevant or incompetent testimony, or that he rejected testimony that was admissible, where, upon all of the facts rand circumstances, it is clearly apparent that the result could not have been different if the testimony objected to had been rejected in the one case or received in the other. Migeon v. Railroad Co., 23 C.C.A. 156, 77 F. 249, 252, and cases there cited. It is clear that the referee erred in admitting testimony to the effect that at the time of the making of the contract sued on the respective parties to it orally agreed that each should have title to the mining claim or claims which each was therein declared to own, and that the contract should be void in case either did not have such title, and that all of the mining claims mentioned in the contract should be worked and operated before the 1st day of August, 1899. Authorities need not be cited to the proposition that parol testimony is inadmissible to add to or alter a written agreement. But that testimony, as well as the findings of the referee in accordance with it, may be properly disregarded on the present appeal. The contract itself declares that the ten claims to which the complainant asserted title were not only then owned, but were then operated by him. If in that condition, it was within the power of the defendant to make an intelligent selection of the one for an undivided one-half interest in which he agreed to convey an undivided one-half interest in his own claim. The evidence clearly shows, and the findings are to the effect, not only that not one of the claims to which the complainant asserted title was at the time of the execution of the contract operated by him, but that not one of them has at
The judgment is affirmed.