123 F. 283 | 9th Cir. | 1903
Upon a rehearing of this cause, the court, after a careful consideration of the terms of the contract involved therein, and the circumstances which attended its execution, has reached the conclusion that its construction thereof on the former hearing (Griffin v. American Gold Mining Co., 114 F. 887, 52 C.C.A. 507) was erroneous. The contract was made between M. W. Murry, the grantor of the plaintiff in error, as the party of the first part, and the Silver Bow Basin Mining Company, the predecessor in interest of the defendant in error, as party of the second part. It provided as follows:
“That the said party of the first part, for and in consideration of the covenants hereinafter set forth, to be performed by the party of the second part, and also in consideration of the sum of twenty-five thousand dollars to be paid to him by the party of the second part, as hereinafter set forth, hereby covenants and agrees with the said party of the second part to sell unto it that certain mining lode claim known as the ‘Morris G,’ situated in the Harris mining district, in the district of Alaska, for a full description of which reference is hereby made to the deed of the party of the first part to the party of the second part, of even date herewith, conveying said prem
“For and in consideration of the covenants hereinbefore set forth, to be performed by the party of the first part, the party of the second part hereby agrees to purchase of the party of the first part the mining lode claim known as the ‘Morris G,’ and pay for the same the sum of twenty-five thousand dollars, as follows, to wit: Five thousand dollars on the 1st day of June, 1892, and twenty thousand dollars on the first day of August, 1892, provided that on the 1st day of June, 1892, the said party of the first part shall have successfully prosecuted in the land office his application for a patent for said premises, and shall have come into possession under and by virtue of such proceedings in the land office of a receiver’s receipt, equivalent to a patent for said claim, but in case the party of the first part shall not have received said receiver’s receipt for the first of June, 1892, then the whole sum of twenty-five thousand dollars shall be payable on the first day of August, 1892, provided as before that the party of the first part shall have successfully prosecuted his application for a patent for said premises and obtained said receiver’s receipt. And it is further agreed that in case the proceedings upon said application for a patent shall not have been perfected and the said receiver’s receipt
The defendant in error, when it became the successor in interest of the Silver Bow Basin Mining Company, assumed all its obligations under the contract.
It will be seen that by this contract the purchase money for the mining claim was to become due in installments, of which $5,000 was to be paid on June 1, 1892, and $20,-000 on the 1st day of the following August, provided that by June 1st a receiver’s receipt should have been issued for said mining claim to the party of the first part, but with the further stipulation that if the receiver’s receipt were obtained at any time within one year from August 1, 1892, then the whole sum was to be due and payable upon the delivery of the receiver’s receipt, together with 'a deed. This is the substance of the contract, and it is not altered or varied by the recital in the contract that a receiver’s receipt is equivalent to a patent, nor by the further provision that the party of the first part shall deliver with the deed the necessary instructions to the General Land Office to secure a patent. There is no covenant that the party of the first part shall obtain a patent to the whole claim, nor is it stipulated that the payment of the purchase money shall be conditioned upon his right to such a patent, or the final issuance thereof. This contract was made on August 21, 1891. The admitted facts are that on June 4, 1881, Murry had located the Morris G. lode-mining claim; that on August 13, 1891, he filed his application for a patent; that on May 12, 1892, he received a receiver’s receipt therefor, and for the whole of the claim as it is described in the contract; that on June 1, 1892, he tendered to the defendant in error the receiver’s receipt, and demanded payment of the sum of $5,000, according
A further observation concerning this contract, which seems to us unanswerable, is that in the light of the surrounding circumstances, which may properly be adverted to, the real subject of the contract — that which the one party agreed to sell, and the other party agreed to buy— was the Morris G. Lode-mining claim, less that portion thereof which was covered by the prior placer claim. At' the time of making .the contract the Silver Bow Basin Mining Company, the grantor of the defendant in error, not only well knew the boundaries of its placer claim, ' and knew that it owned the same, and that the location of that claim was prior in point of time to the location of the Morris G. lode claim, but it knew, also, that at the very time of making the contract its application had been made for a patent to the placer claim, and notice had been published thereof, and the time for objecting to or contesting the same had long since expired, and that the application and proceedings thereon were then about to culminate in the issuance of a patent, which in fact was issued in less than 30 days from that time. It is fairly to be inferred from these facts, and from the terms of the contract, that the predecessor of the defendant in error was well aware of its superior right and title to the placer claim, and knew that that claim overlapped nearly one-half of the Morris G. lode claim, and that nevertheless it was willing to and did contract and obligate itself to pay for the Morris G. lode claim, as it stood, subject to such overlap, the sum of $25,000, provided that the owner of the latter claim should within the stipulated time obtain a receiver’s receipt therefor. In other words, the subject of the contract was the Morris G. lode claim, overlapped as it was by the prior placer claim; and the purpose of describing the lode claim by metes and bounds and reciting its acreage was to identify it, and not to indicate that it was of the essence of the contract that Murry should ob
The judgment of the District Court is reversed, and the cause is remanded for further proceedings not inconsistent with the foregoing opinion.