182 Mass. 384 | Mass. | 1903
The decision of this case turns on the construction of a contract in writing, for breach of which this action is brought. Apparently neither the plaintiff nor the defendants ever did anything under the contract after it was signed. The breaches alleged were that the defendants failed to expend $500 in the work of development, prospecting for gold upon the areas referred to in the writing, and failed to pay fees to the government on these areas to renew the plaintiff’s rights. The Revised Statutes of Nova Scotia which were put in evidence, are important in testing the validity of the plaintiff’s claims. All the rights the plaintiff had when the contract was made, or at any time afterward, grew out of his applications for a prospecting license for these areas, and his payment of the fee required by statute to be paid on the filing of such applications. He had no right to prospect or to do anything upon the land until he should first obtain a prospecting license. The words “to mine,” are defined in the statute in such terms as plainly to include the development mentioned in the contract. Rev. Sts. Nova Scotia, 1900, c. 18, § 2. Mining without first having obtained a lease or license is punishable criminally under the statute. § 32. A license could not be obtained under the plaintiff’s application without his first filing a bond with two sureties for the protection of private landowners, substantially in the form prescribed by the statute. § 157. After obtaining such a license, it could be transferred under the statute, but until the license should be issued, the plaintiff had no legal right which he could transfer.
The contract to expend not less than $500 in the development of the mines, if it is to be construed to require such development by the defendants with no other pretence of authority than the plaintiff’s application, was a contract to perform a criminal act, which cannot be enforced.
Evidence from the plaintiff’s witness that there was a general custom in Nova Scotia to violate the law in this particular, was incompetent. If the fact were as the plaintiff offered to prove, it would not put upon the defendants a legal obligation to do that which was forbidden by the statute under a penalty.
The same condition applies to the stipulation that the defendants shall “ pay the government fees on said areas that may be necessary to renew them.” The only provision in the statute for the renewal of rights of this kind is for the renewal of a license. § 36. There is no provision for the extension of an application beyond the year within which the license was issued. Until the license was issued there was nothing to renew, and no license was ever issued.
Exceptions overruled.