16 Mont. 16 | Mont. | 1895
At'the’trial of the case the defendants offered evidence to prove what construction should be given to the words, £ione:sixth of the net proceeds of all shipments of ore,” as used in the contract between plaintiff and themselves, as quoted above. The defendants contended that under said contract they were entitled to deduct all the expenses of mining, as well as the expenses of shipping, the ore, before plaintiff was entitled to receive his one-sixth of the net proceeds thereof, and sought to prove by witnesses, that, according to the custom of miners, said contract should be .so construed. This evidence was rejected; the court holding that the defendants could only deduct the expenses of shipping the ore, and not the expenses of mining it, and so instructed the jury. This action of the court is assigned as error. We think there was no error in this action of the court. The contract is not ambiguous. It specifies what expenses the defendants could deduct from the value of the ore, and confines these expenses to the shipping of the ore. There is a vast difference between the expenses of mining and shipping ore and the expense of merely shipping the same.' The words used are perfectly plain, and we think it would have been improper to have allowed evidence to prove that they meant something else. Parol evidence was not admissible either to change the contract, or add something to it. This is elementary law.
It also appears from the record that the original parties to the contract put the same construction upon it that the court did, for, until the original obligees assigned their interest .in the contract, they only deducted the expenses of shipping the ore, in their settlements with the plaintiff. We think the contract is perfectly plain in its terms. There is no ambiguity about it. The expenses of shipping the. ore are the only expenses mentioned therein that. defendants were authorized to deduct from the value thereof before paying to plaintiff his one-sixth of the net proceeds. To charge plaintiff with any part of the mining expenses would be adding something to the
There are several specifications of error, attacking the action of the court in excluding testimony and giving instructions involving the construction of this agreement, but we have deemed it sufficient to treat them all as one assignment.
The defendants complain of the judgment of the court, in that it is for the possession of the whole George mining claim. The plaintiff, under his agreement with the defendants, leased or let to them his undivided one-third interest in said mining claim, and no more. This undivided one-third interest in said mining claim is t*>e only part or interest therein that defendants bound themselves, under said agreement, to redeliver the possession of to plaintiff, in the event of their default in complying with the terms of said agreement. The possession of this undivided* one-third interest was the only part or interest in said mining claim that plaintiff had the right to demand in case of the default of the deiendants. If the co-owners of plaintiff, or their assigns, were in possession of their undivided two-thirds interest in said mining claim, it would be impossible for defendants to comply with the judgment. The judgment should have been in favor of plaintiff, and against the defendants, for- pos session of that interest in the George mining claim which they, or either of them, acquired under said contract or lease, and that he be put into possession of said interest, and the judgment should be modified in this respect. (Freeman, Cotenancy § 293; Newman v. Bank of California, 80 Cal. 368, 22 Pac. 261; Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280.)
There are other errors assigned, but we think it unnecessary to treat them.
The case is remanded, with directions to the court to modify the judgment in accordance with this opinion; and the judgment, as so modified, is affirmed.
Modified and affirmed.