36 Nev. 390 | Nev. | 1913
By the Court,
By this action, brought in the district court of the Fourth judicial district in and for Lincoln County, plaintiffs, appellants herein, sought to obtain a decree of that court extending the time for the exercise of a certain option, or, in lieu thereof, a decree declaring that the cancelation of a certain agreement entered into between the Potosí Mining Company and the Potosí Mineral Company and theretofore conveyed by mesne process to plaintiffs be set aside. The cause was tried in the Fourth judicial district court before Hon. Geo. S. Brown, judge thereof presiding, and judgment was entered by the said judge in favor of respondents and against the appellants. Subsequently a motion for a new trial was made and presented to the same court before Hon. E. J. L.' Taber, successor of Judge Brown, and his judgment was thereafter entered, denying plaintiffs’ motion for a new trial. In so far as the record discloses, the principal ground relied upon in furtherance of the-motion for a new trial was that the evidence did not sustain the judgment theretofore entered by Judge Brown, formerly presiding judge of said court. Heretofore an appeal was taken to this court from the judgment, and the same was dismissed by this court for want of prosecution. '
As appears from the appellants’ brief, the principal ground relied upon to authorize the trial court in granting a new trial, or to authorize this court in reversing the trial court in this respect, is that the decision of the trial court is not supported by the evidence, and is contrary thereto. Appellants, in their brief, especially except to the finding No. 15, as filed by the trial court, wherein that court stated: "That they (the respondents) never declared that they did not consider said option in full force and effect. That they never declared that they repudiated the same. That they never slandered nor cast doubt upon the title of said option holders to said option. That they have never at any time repudiated said option in any way, nor represented to any one that they did not consider said option in effect. * * * The court finds that no acts or conduct of defendants in any way prevented said option holders from making a sale of such property, or from paying the purchase price therefor within the time aforesaid. That it is not true that by reason of any act of defendants said option holders have been deprived of five months and ten days, or of any time whatever 'of the period provided by said option agreement, and the court finds that plaintiffs and said option holders in particular have suffered no injury whatever, nor will they continue to suffer injury if defendants are permitted to declare said option terminated. And the court finds that no damage or detriment has been suffered by plaintiffs or any of them on account of any conduct of defendants. ”
As appears from the transcript in this case, an option on a certain group of mining claims was executed by J. J. and P. H. Mahoney, respondents herein, to Chris N. Brown, Wilbur O. Dow, and P. G. Gray, as trustees for the benefit of the Potosí Zinc Company. By the terms
At the trial of the case J. J. Mahoney was called as a witness on behalf of the plaintiffs,'and from the transcript it appears that he testified: "About one.month after said option was given I tendered back the $250 paid on said agreement to Chris N. Brown, J. N. Strine, and Wilbur O. Dow, each separately, and told them that we wanted to cancel the contract, and we withdrew from the Citizens’ National Bank all deeds and title papers theretofore deposited with said Citizens’ National Bank for the perfection of sale under said option in the event said option was exercised.” At another place in his testimony he said in substance: "We refused to accept the $150 per month deposited in the Citizens’ National'Bank each month for four months under said agreement. ”
Appellants in this case contended in the trial' court that, by reason of the acts and utterances of J. J. and P. H. Mahoney relative to the option, they were unable to sell or dispose of the property, and therefore unable to carry out and complete the terms and conditions of the option. But, in reviewing the testimony given and the exhibits as filed, it is apparent that the utterances of respondents relative to rescinding the option were made only to Gray, Brown, and Dow, the parties to whom the option had been given, or to their attorneys.
It appears that on March 25 respondents wired P. G. Gray as follows: "Meet me Los Angeles must discuss option further to once otherwise trouble ahead. ”
Plaintiffs’ Exhibit No. 12 is a letter from W. E. Smith, watchman at the mine, to P. G. Gray, one of the trustees for the appellant corporation. In that letter the writer
Defendants’ Exhibit No. ZZ is a carbon copy of a letter from Mahoney Bros, to the Empire Zinc Company, at Denver, and in that letter the following appears: “We have a carload of zinc ore at Arden Station, Nevada, which we would like to sell. Please quote us your best price. This ore will run about 37 per cent to 38 per cent zinc and probably 10 per cent lead. We have taken over the Potosi Zinc Mine, and you will remember we shipped you a great deal of ore some few years ago. Please give us your best prices on the ore, as we want to get a line on what this ore is worth. We will be ready to ship the ore in about ten days, and would like to hear from you before then.”
Defendants’ Exhibit No. NN is a carbon copy of a letter from Mahoney Bros., respondents herein, in reply to the Empire Zinc Company, in which letter it is stated:
It may be well to observe at this point that by the conditions of the option in question in this case the time for making the first payment of $50,000 expired on the 20th day of September.
The testimony of P. H. Mahoney relative to the foregoing letters was introduced in explanation of the statement made therein, and from the transcript it is disclosed that the ore shipped to the Empire Zinc Company by Mahoney Bros, and mentioned in the communication was ore that had been on the ground at the time of filing the option. The respondents J. J. Mahoney and P. H. Mahoney, being called upon the stand, both deny having repudiated the option • contract. It nowhere appears in the transcript that they even inferentially repudiated their contract, or that they requested a rescission of the contract to parties other than those to whom the option had been given, or the attorneys for the parties.
The letter of J. J. Mahoney to P. G. Gray, dated April 28, while it states that he had taken all of the papers out of escrow, sets forth: “At any rate, it seems to me that, if yourself and your associates intend to avail yourselves of the option, it is your immediate duty to remove all liens and to cause conveyances of the claims filed on by Smith to be made to us, instead of to the Potosí Zinc Company.”
Plaintiffs’ Exhibit No. 5- is a carbon copy of a letter
Counsel for appellants, in their brief,- contend that, as P. G. Gray, one of the option holders, was carrying on negotiations for the sale of the property with companies and concerns in close business connection with the Empire Zinc Company, and as he was also negotiating with the Empire Zinc Company itself, through its representatives, with the view of selling the property and complying with the terms of the option, the letters from Mahoney Bros, offering ore from the mine for sale, and their acts and utterances in that respect, tended to repudiate the option given to Gray, Brown, and Dow.
There is no evidence in the record disclosing that the Empire Zinc Company, or any of their business associates with whom Mr. Gray was negotiating, considered the acts or utterances of Mahoney Bros, in the sense of repudiation of the option. Moreover, as appears from the letters of Mahoney Bros., respondents herein, to the Empire Zinc Company, the option and contract were recognized by respondents to such an extent that they stated to the Empire Zinc Company, in their letter of May 22, that some time in September they would like to take up the question of operating the mine and shipping ore steadily, and, again, in their letter of July 29 to the Empire Zinc Company, they said: “We have concluded, however, not to commence operations until about the first of October.”
In our judgment these letters set forth in no uncertain terms the acknowledgment of respondents of their inability to ship ore from the Potosi mine until a time after
From the record in this case and the letters filed as exhibits, it appears that, in so far as the option holders were concerned, there was one especially energetic in his efforts to bring about a culmination of the contract. This was P. G. Gray, who, according to his letters, visited concerns in the eastern cities for the purpose of negotiating a sale of the property. As appears from the letters of P. G. Gray in the record, and from his testimony, he was putting forth every effort to bring about the desired result, i. e., the sale of the property. It appears from his letters that he was handicapped in this effort, first, by reason of tariff legislation then pending in Congress, secondly, by reason of his inability to secure the expert’s report, and, thirdly, and perhaps most important of all, by the shortness of time allowed him in which to bring about a transaction of this magnitude. Gray being the one who had assumed the burden of completing the transaction, and he being by far the most energetic and active in his endeavors to bring about the fulfilment of the contract, and he being an interested party in the affair, his testimony in behalf of the appellants must be considered with the view of determining whether or not the acts or utterances of the respondents hindered him to any degree, or were responsible for his failure to bring about the desired result.
In his testimony the witness Gray said: “Troutman is with the Empire Zinc Company. I saw Mr. Trout-man several times, and tried to get him to put up the $50,000. The thing was practically consummated that afternoon of the 16th of September. He pressed the button for the lawyer to come down. He said that part of it was all right, but he wanted time to look into details. I' wired Los Angeles that we needed a few more days. That was all that interfered with the deal at that time. * * * The fact that I did not have Mr. Smith’s report on the property before the 1st of August
From the foregoing exhibits, and from the testimony of Gray, it will be observed that the Empire Zinc Company, with whom Mr. Gray was negotiating for the sale, being the same company with whom the respondents had corresponded relative to shipments of ore, did not regard the correspondence of respondents as acts or declarations repudiating or rescinding the option held by appellants. The Empire Zinc Company, as appears from the testimony of Mr. Gray, were ready to transact business with the option holders. All that interfered with the deal at that time, according to Mr. Gray’s testimony, was the fact that they needed a few more days to look into details. The testimony of witness Gray discloses an energetic effort on his part to sell the property and comply with the terms of the option, and his efforts did not appear to be less energetic after receiving the letter of April 28 from respondents Mahoney. It does not appear from his testimony that he regarded the utterances in that letter as a repudiation of the option on the part of Mahoney, because, as appears from his testimony, he visited many concerns after that date with the view of selling the property. It nowhere appears that the acts or .utterances of respondents relative to the option were made known to any of the parties with whom Gray negotiated save and except in so far as they may have been disclosed by Gray himself, and, if this was done, the respondents Mahoney could not be held responsible for the results of the acts of appellants, or their representatives.
As appears from the transcript in this case, and especially from the testimony of the witness Gray, negotiations which he endeavored to carry on with concerns in the east, with the view of selling the property, terminated as soon as he showed them respondent’s letter of April 28. • It appears that this was a letter
From these statements made by the witness Gray, it will be observed that the deal was practically consummated. The prospective purchaser, Mr. Troutman, representative of the Empire Zinc Company, in so far as the record discloses, raised no question as to the repudiation of the option by respondents, but required time to look into details. Moreover, it is manifest that on the 16th of September, when this transaction was about to be consummated, the witness Gray, one of the parties interested, did not consider that the respondents had repudiated the option, because on that day he wired to his associate, Chris N. Brown: “Have operating department framed up satisfactory deal but blocked by legal department pending time necessary examine title, lease, records, etc. Tell John give me thirty days and will go out with funds. Boston tomorrow.”
As we observed before, there was but one party especially active in his endeavors to bring about a sale of the property and the fulfilment of the option, and that party was the plaintiff Gray, president of appellant company, and, in our j udgment, the trial' court was warranted in its findings and its order based on his testimony, if on nothing else. He testified: “I was president of the company, and did whatever I could to get the thing through. * * * I do not know that.any of my' sales were blocked by John Mahoney. * * * If John knew how I had worked for himself and all the rest of us, I think he should have granted the extension.”
It therefore follows that the order of the trial court in denying appellant’s motion for a new trial should be affirmed.
It is so ordered.