103 Kan. 494 | Kan. | 1918
The opinion of the court was delivered by
C. A. West brought an action against Wm. Brugger for the specific performance of a contract for a mining lease. Brugger defended on the ground that the plaintiffs privileges under the contract had been forfeited in consequence of a cessation of work thereunder for a period of ten days. A trial resulted in a judgment denying the plaintiff relief, and he appeals. N. W. Moxley was joined as a defendant, but, as the vital controversy was between West and Brugger, the latter will be spoken of as the defendant.
On August 10, 1916, the defendant, being the owner of a quarter section of land, executed to the plaintiff a contract by which the latter was given the right (and on his part agreed) to prospect and mine for ore thereon; all mineral produced during the prospecting period to be marketed, and the defendant to receive a royalty of iy% percent. Two of the provisions of the contract read:
“Said party of the second-part [the plaintiff], heirs or assigns, further agree to begin operations within forty days from the date hereof, and agree to work in good faith, and not cease work for more than ten days at any time without permission of party of the first part, delays caused by unavoidable accident or causes beyond the control of said second party alone excepted. ... It is further agreed and fully understood that in case the said party of the second part, his heirs or assigns do not prospect, mine or develop said tract or parcel of land, or cause the same to be done as hereinbefore set forth and stated, on or before the*496 20th 'day of September, 1916, or shall fail in any particular to carry out any of the provisions of this contract, the same shall thereupon become void and of no effect whatever, and in the event thq said party of the first part may declare this contract forfeited by serving written notice upon the party of the second part, either in person or through the mail at the last known address of the party of the second part, stating that said contract has been forfeited, and thereupon said party of the first part may take immediate possession of said tract or parcel of land without giving notice to quit, demand of possession or any legal proceedings whatever, and the party of the second part hereby agrees to leave said premises.”
A further agreement was included, to the effect that if on or before September 20 the plaintiff or his assigns should discover and develop ore in paying quantities, and should proceed to carry out the objects of the contract by erecting the appropriate works to put the mineral in marketable condition, the defendant would grant him (or his successors) a ten-year mining lease of an agreed form.
The time within which operations were to be begun was extended by agreement. On October 14, 1916, the plaintiff subleased the south eighty acres to N. W. Moxley, executing to him two contracts quite similar to that already described, one covering the southwest quarter of the 160-acre tract, in which a royalty of 10 percent was reserved, and the other covering the southeast quarter, in which the royalty named was 7% percent —the same as that of the defendant under the original agreement. Moxley at once began work upon the southwest quarter, the time of such commencement being satisfactory to the defendant. Shortly afterwards Moxley “sublet or subcontracted” the premises to a party of four, which included W. T. Hale and A. Y. Young. This party employed Moxley to continue the work for them, and for a time he did so. On February 17, 1917, the plaintiff assigned his rights under his contract with the defendant to George J. Kusterer and three others, who agreed to pay royalties of 12% percent on the north half of the tract, 10 percent on the southwest quarter, and 7% percent on the southeast quarter. A stipulation Was inserted in the assignment that any work being done on the quarter section by the persons then holding contracts should be considered a compliance with the original contract with the defendant. On February 26,1917, this work ceased and was not resumed prior to March 10, 1917, on which date the defendant served upon
After Hale and his associates had arranged with Moxley to do the work in their behalf, one of them, White, failed to meet his share of the expenses. Therefore, in order to get rid of White, Hale and his other associates arranged with Moxley, the defendant being a party to the plan and consenting to it, that all work should be stopped for ten days, and that upon that ground a notice of forfeiture should be served with the purpose of cutting off the rights of White, it being understood by all the participants in the scheme that as soon as this had
The plaintiff’s evidence was sufficient to make a prima facie case in support of this version of the transaction, and it was doubtless for this reason that the trial court overruled a demurrer thereto. But the defendant introduced evidence of a contrary tendency. He swore that the persons who were conducting the operations told him' they were through, giving as a reason that at one time they didn’t find anything, and that the plaintiff had made a deal with some one else and didn’t have to be drilling, and also saying that Young wouldn’t put up his part. He also testified that he didn’t know that Moxley was going to quit, and had no agreement with him to give him a contract on any part of the land. It is true, as argued by the plaintiff, that there are features of the record that seem to lend support to his contentions on this phase of the case, but the question was one of fact, upon which the decision of the trial court is conclusive. The plaintiff cites cases holding that in an equitable action a reversal will be ordered on appeal if the judgment is thought by the reviewing court to be against the weight of the evidence, but that is not the practice in this jurisdiction. It may be mentioned as bearing upon the equities of the case that the plaintiff testified that two days before being served with the notice he learned that the defendant was going to declare a forfeiture against all the claimants under the contract.
The judgment is affirmed.