7 Gill 124 | Md. | 1848
delivered the opinion of this court.
It appears from the record in this case, that a bill was filed in Baltimore Gounty court, as a court of equity, on the 24th of June 1846, by the appellant, as the assignee of Thomas Petherick, against the appellee, for the specific performance of an agreement, alleged to have been made between the appellee and Petherick, in June 1844.
The agreement is in the following words:
“Whereas Mr. Thomas B. Watts, of Bare Hills, near Jones Falls, in the county of Baltimore, in the State of Maryland, has, on his faun at Bare Hills, above mentioned,-copper, and other minerals, and is desirous to have the same properly explored and worked; and whereas Thomas Petherick, residing at Philadelphia, in the State of Pennsylvania, is willing to undertake such exploration and working, the said Thomas B. Watts for himself, his heirs and assigns, in consideration of one dollar, paid to him by the said Thomas Petherick, agrees to give to the said Thomas Petherick, his heirs or assigns, full power to make such exploration and works on the said farm, as he, the said Thomas Petherick, may think proper for such purposes, and for the reduction and conversion of the minerals, and to carry away and to dispose of the minerals, subject to the following conditions, viz :
“That the said Thomas B. Watts reserves to himself, his heirs or assigns, a seigniorage of one full fifteenth part or share of all such minerals or metals, after the same shall have been rendered fit for smelting, reduction, or use, free and clear of all expenses whatever. That the said Thomas Petherick, his heirs or assigns, shall, on or before the 10th day of July next, commence proper explorations, for the purpose of ascertaining the mineral prospects on the said.farm.
“That if the seigniorage, above reserved, be found to be less than the average rate of seigniorage, or dues paid, to the land
There is then a provision in the contract, that Petherick shall furnish the appellee with satisfactory references as to his respectability.
The case was removed to the court of chancery. The only testimony taken under the commission issued in this cause, was documentary in its character, and the controversy was submitted to the chancellor, upon the bill and answer, the two agreements, the receipts, the assignment to the appellant, and the correspondence. Upon the 2nd of April 1847, ho passed a decree dismissing the complainant’s bill, and the correctness of the opinion thus pronounced by the chancellor, is tbe question raised for our determination on this appeal.
In the case of Geiger against Green, decided by this court, at the December term 1847, a bill was filed for tbe specific execution of a contract, entered into between Charlotte C. D. Owings and Richard Green, bearing date the 10th of December 1838. The agreement was as follows:
“I hereby grant to Richard Green, the privilege of digging and moving the ore on that part of my place joining Welder-son’s and Price’s, at twenty-five cents per ton, for the privilege of ground, leave also to build a house on said land, the workmanship to cost one hundred dollars, the materials to be got on my land, at said Green’s expense.”
In the examination of this agreement, the Court of Appeals said:
“It is true, that as this mine was worked, and ore raised from it by the appellee, an obligation to pay twenty-five cents for every ton that was produced, would be created. But the contract grants to the appellee the mere privilege of digging ore, and is not compulsory in its character; a privilege to be exercised or not, at his discretion; imposing no corresponding obligations; and if the appellee had considered the agreement into which he had entered injurious, and refused to work the mine, it is apparent from every part of this paper, that the proprietor possessed no power to enforce, in a court of equity, an observ
The court then say:
“A contract so unequal in its stipulations and bearing, which binds one party, while it leaves the other unfettered, as it respects the observance of its terms, in which there are to be seen no mutual or reciprocal engagements, and which must be regarded therefore as unreasonable and inequitable, can never be enforced in a court of equity.”
When speaking of the agreement between the appellee and Thomas Petherick, the chancellor says:
“Although it was the manifest design and object of the defendant, to have the minerals upon his farm worked, as well as explored, and, although for a small pecuniary compensation, he gave Petherick full power to make such explorations and works, the only stipulation on the part of Petherick, is, by a certain period, to commence operations for ascertaining, by explorations, the mineral prospects on the said farm. The engagement, therefore, on the part of Petherick, was limited to the explorations, and he was not bound to work the mines.”
We think, the interpretation placed upon this contract by the chancellor, is unquestionably correct.
The agreement recites, the desire of the appellee to have the minerals upon his farm explored and worked, and the willingness of Petherick to explore and work them, and that the appellee therefore grants to Petherick, in perpetuity, full power to make such explorations and works, as he may think proper for such purposes, and for the reduction and conversion of the minerals; and yet, when that part of the contract is examined where the conditions are expressed, it is discovered, that Petherick has only stipulated for the explorations of the mineral prospects of the farm, on or before the period designated in the agreement.
After carefully collating these contracts, we think, the case at bar cannot be distinguished from the case of Geiger against Green. And that the agreement now under consideration, is obnoxious to the same objection, which was held to be fatal in the case to which we have referred.
Upon this ground, we affirm the decree.
As we consider the case before us concluded by that of Geiger vs. Green, it lias become unnecessary to express an opinion upon the other points raised in the argument of the cause.
DECREE AFFIRMED.
