32 F.2d 855 | 9th Cir. | 1929
July 10, 1923, Nome Dredging' Trust, a common-law trust, referred to throughout the record as the Trust, entered into an agreement with Hammon Consolidated Gold Fields, referred to in the record as Gold Fields, under the terms of which the Trust agreed to grant, bargain, sell, convey, and transfer to Gold Fields certain personal property and town lots in the Cape Nome Mining and Recording district, Alaska, for the sum of $155,000, payable as therein provided; and for and in consideration of the agreement to purchase the aforesaid personal property and town lots the Trust further granted unto Gold Fields a mining lease and option to purchase all and singular certain other real property enumerated and described in schedules attached to the agreement; the term of the mining lease and option to commence on the date of the agreement and to continue to and including December 31, 1935, unless sooner terminated as thereinafter provided. It was then agreed that the Trust should deliver possession of all and singular the mining property to Gold Fields on or before August
The appellant contends that the agreement between the parties was essentially an option; that as an option it imposed no obligation on the optionee to pay the purchase price until the option was exercised; and that the minimum annual payments involved in this action were essentially parts of the purchase price. The appellee, on the other hand, contends that the agreement was essentially a lease; that the obligation to pay the several minimum annual payments during the life of the lease was an absolute one; and that in any event the appellant could not defeat a recovery for the minimum annual payments falling due December 1, 1927, by surrendering the premises 30 days thereafter. If this latter contention is well founded in law, it becomes unnecessary, and would perhaps be improper, for us to consider the other and more important question.
The agreement and lease provided that the minimum annual payments were to be made by way of rental, and, parenthetically, that they were also to be made and
It does not aid us to say that the subject-matter of the agreement was mining property,' or that the agreement itself was only an option, for these are mere aids to interpretation, and if the language of the agreement is plain and free from ambiguity, as we think it is, there is no room for construction.
It is lastly contended that the complaint failed to state a cause of action because it failed to allege that the appellee had performed the main agreement between the parties. But the complaint did allege that the appellee had at all times kept and performed the agreements contained in the lease, and that instrument contained all the substantial provisions of the antecedent agreement. Furthermore, we think it sufficiently appears from the record that the case was presented on the merits in the court below, and that mere technical defects, curable by amendment, were not raised or considered.
What the rights and obligations of the respective parties may be in the future, in view of. the surrender of the property after the annual minimum payments for 1927 became due, we need not inquire, and upon that question we express no opinion.
The judgment is affirmed.