114 F. 887 | 9th Cir. | 1902
This action was commenced November 20, 1893, in the district court for the district of Alaska, by Martin W. Murray against the Nowell Gold Mining Company, to recover $25,000, with interest, under and by virtue of a written contract entered into August 21, 1891, by and between Murray and a corporation styled “Silver Bow Basin Mining Company.” By that contract Murray agreed and covenanted, for the considerations therein stated, to sell to the Silver Bow Company a certain mining lode claim, situated in the Harris mining district of Alaska, called the “Morris G,” which the contract declared to be fully described “in the deed of the party of the first part [Murray] to tl/e
And the contract concluded with this clause: “This agreement is drawn in triplicate, and collateral thereto a deed of the party of the first part, conveying the said premises to the party of the second part, describing said premises by field notes of the United States surveyor, as set forth in said application for patent, and containing the usual covenants of warranty, and which said deed, together with one triplicate of this agreement, is placed in the hands of A. K. Delaney, in escrow, to be disposed of in accordance with the terms of this agreement, or returned to the said party of the first part in case such agreement is not finally perfected and carried out, and one triplicate of this agreement is delivered to each of the parties hereto, respectively.”
The complaint alleged, among other things, that on the 14th day of December, 1891, the Silver Bow Company, in consideration of the sum of $5, and of the assumption in writing by the defendant Nowell Gold Mining Company of all the contracts, debts, and obligations of the Silver Bow Company, the latter sold and conveyed to the Nowell Company all of its property, rights, and assets within the district of Alaska, in consideration of which the Nowell Company did, in and by a written agreement, annexed to and made a part of the complaint, assume, among other obligations, the contract of the Silver Bow Company with the plaintiff. Pending the action Frank W. Griffin was substituted as plaintiff, as successor in interest of Murray, and the American Gold Mining Company was likewise substituted as defendant, as successor in interest of the Nowell Gold Mining Company, and the case continued as between these parties, standing in the shoes, respectively, of the original parties to the action. Prior to the substitution of Griffin as plaintiff, an amended complaint was filed by Murray, in which it was alleged, among other things, that:
*795 “Although said defendant has refused and still refuses to pay said sum of twenty-five thousand dollars, or any part thereof, nevertheless during the mining season of 1894 said defendant went upon said Morris G. lode claim and took possession of the same, and worked and mined said Morris G lode claim, and removed therefrom large quantities of earth and gravel containing gold and other precious metals, and still retains undisputed possession of said claim.”
The averments last quoted were put in issue by the answer of the American Gold Mining Company to the amended complaint, as well as the allegations in respect to the assumption by the Nowell Gold Mining Company of the obligations imposed on the Silver Bow Company by reason of its agreement to purchase and pay for the Morris G lode claim. The only other defense interposed by the defendant American Gold Mining Company was that on the 30th day of June, 1894, Murray conveyed the Morris G lode claim to the present plaintiff, Griffin, who has ever since remained the owner thereof, and that—
“If it was ever bound, or could be held liable, on the concract between the plaintiff and the Silver Bow Basin Mining Company, yet it says that plaintiff ought not to have and maintain this suit against it, for that it is not true, as alleged by plaintiff, that he complied with all the terms and conditions of said contract, and defendant especially denies said allegation or performance by plaintiff; that in truth and in fact, while under the terms of said contract plaintiff was to obtain a receiver’s receipt, and give such instructions and perform such acts as were necessary to enable the Silver Bow Basin Mining Company to obtain a patent, to about thirteen (13) acres of ground embraced within the exterior limits of the said Morris G. lode as described in said contract, yet the receiver’s receipt finally given and entry allowed only embraced about six (6) acres of said ground; that the said ground embraced in the exterior boundaries of said Morris G lode claim as described in said contract conflicted with prior valid mineral locations, to wit, with discovery claim, embraced in U. S. surveys Nos. 77, 78, 79 and 80, to the extent of about seven acres, which said prior locations were adjudged by the land department to have the prior and better right to said land so in conflict. The precise extent and nature of said con*796 fiict is shown in the plat hereto attached and made a part hereof.”
The case was tried with a jury, and a verdict returned for the defendant by direction of the court. The assignments of error present the questions hereinafter considered, which are the only ones we deem it necessary to mention.
On the trial the plaintiff offered in evidence the written agreement of the Nowell Gold Mining Company, by which for valuable considerations it undertook to assume the obligations of the Silver Bow Basin Mining Company in respect to the purchase of the Morris G lode claim, which agreement was excluded by the court below on objections thereto interposed by the defendant. In that there was manifest error, not only because the alleged making of that agreement was one of the important issues in the case, but also for the feason that it was contemporaneous with, explanatory of, and, indeed, by express reference, was made a part of, the deed from Murray to the Silver Bow Company, which the court did admit in evidence. Whether or not the error so committed demands a reversal of the judgment depends upon the view taken of other questions in the case.
It appeared from the evidence that on the 4th day of October, 1880, the Discovery placer claim was located, by whom does not appear, and that an application for a patent therefor was filed in the local land office October 19, 1888. Meanwhile, to wit, June 4, 1881, the Morris G lode claim was located by Murray, and so located as to include a portion of the surface of the prior placer location. Notice of the application for a patent for the placer claim was duly posted and published, and, no adverse claim being made, the claimant was on March 14, 1891, permitted to make mineral entry No. 32, embracing lots Nos. 77, 78, 79, and 80 of the government surveys, upon which entry a patent was issued September 18, 1891. Notwithstanding the fact that the Discovery placer claim included about 6.33 acres of .what Murray located as the Morris G lode claim and contracted to sell to the Silver Bow Company, he interposed no adverse claim or protest against the application of the placer claimant for a patent therefor. August 13, 1891, Murray filed his application for a patent
That question of fact, the evidence showed, was determined in favor of the protestant by the land department, and accordingly Murray’s mineral entry 39 was held for cancellation in so far as it.conflicted with the prior Discovery placer location, and the subsequent entry and patent of the Morris G lode claim allowed only for about 7 of the 13 acres Murray bound himself to convey. That the determination of such questions of fact by the land department. of the government is conclusive upon the courts has been so often decided as to render a citation of the cases unnecessary. There was, therefore, no error on the part of the court below in refusing to submit to the jury, at the request of the plaintiff, the questions: “(1) Was the Morris G lode or vein in existence at the date of the application for patent for the Discovery placer claims, situated in Silver Bow basin, Alaska? (2) If so, was the Morris G. lode or vein known to exist within the boundaries of said Discovery placer mining claims at the date of the application for a United States patent for said Discovery placer claims?”
The contention on the part of the plaintiff in error that he and his predecessors in interest were prevented by the
The judgment is affirmed.