86 P. 15 | Ariz. | 1906
Lead Opinion
Frank and Josephine Powers are the owners of a group of mines situated in Santa Cruz County, known as the “World’s Fair Mines.” They entered into a contract with one Ray Ferguson to sell-to him or his assigns these mines, granting therein the privilege of developing the mines, and removing and' reducing the ores therefrom, pending the consummation of the purchase, upon the stipulation that all proceeds realized from such ores, after certain deductions, should be paid to the owners to apply upon the purchase price. Among the provisions of the contract were the following: “It is further agreed that all ore which can be taken out in such working, or stoped out below the said main level of the aforesaid World’s Fair mine, and all ores now on the dumps, shall be milled and, concentrated or leached on the grounds, according as the character of the ore may require; and it is understood and agreed that the sum of twelve dollars per ton shall be allowed by the parties of the first part [Powers] to the party of the second part [Ferguson or assigns] for such treatment. On all ores, if any should be extracted from the
The question whether the defendant is entitled to withhold twelve dollars per ton from the proceeds of ore shipments depends upon the meaning of the portion of the contract set out above, This is ambiguous. Certain instructions signed by all the parties to the contract, given to a bank with which there were deposited in escrow deeds of conveyance executed in accordance with this contract, seem to afford a contemporaneous construction by the parties of the ambiguous expressions of the contract; and this construction is the one adopted by the trial court. These instructions appear in the record of this case as an exhibit attached to a cross-complaint filed by the defendant. To this cross-complaint a demurrer was ■sustained, but upon the trial of the case it was formally offeréd in evidence by the defendant and received over the objection of plaintiffs. Unaided, the language of the contract does not support the interpretation permitting the defendant to withhold twelve dollars per ton for ore shipped to a smelter, and not milled, concentrated, or leaehed on the grounds. Foundation was not laid by the defendant for the introduction of secondary evidence of the instructions to the bank, where
The judgment is reversed, and the ease remanded for a new trial.
Rehearing
On rehearing.
Appellants have filed a motion for rehearing,
basing it upon several grounds, two of which merit our attention in passing adversely upon the motion.
It is pointed out that the instructions given to the bank, with which the contract adverted to in the opinion of the court was deposited in escrow, and which instructions in that opinion we say “seem to afford a contemporaneous construction by the parties of the ambiguous expressions of the contract,” were in fact executed some seven months subsequent to the execution of the contract. We held that the contract in question, in the portion adverted to, was ambiguous. In determining the construction placed upon an ambiguous contract, the construction placed upon it by the parties, whether evidenced by some acts or circumstances contemporaneous with the execution of the contract, or by subsequent acts or circumstances, or formal expression, is entitled to consideration in resolving the ambiguity. Therefore the fact that the instructions in question were executed several months after the contract would not affect the conclusion we reached in our opinion, but would have the effect only to make inapplicable the use of the word “contemporaneous” where it was used in the expression above quoted.
The appellants also urge that the order entered by this court reversing the judgment and remanding the cause for a new trial, deprives them of the advantage of their judgment, in so far as they had obtained judgment against the defendant for $6,425.78. Without determining whether the ap
The motion for rehearing is denied.