83 P. 775 | Idaho | 1906
— In December, 1901, the plaintiff, David Whitmer and Texas Angel, now deceased, entered into an agreement with one W. C. Picking, whereby they contracted and agreed to sell him the First and Second West Extension claims to the Queen of the Hills lode mining claim, for the consideration of $35,000, to be paid on or before December 4, 1903. Picking thereafter assigned his interest in this contract to the Bellevue Mining and Reduction Company. At the time of this transaction the First National Bank of Hailey owned an undivided one-third interest in the First West Extension and a one-half interest in the Second West Extension for which Angel had previously secured a deed to be executed by the bank and placed in escrow with the E. E. Stewart Hardware Company of Hailey, to be delivered to Angel upon the payment by him to the holder of the escrow on or before December 4, 1901, the sum of $2,500 to the credit of the bank. On June 27, 1901, in consideration of the performance of certain assessment work, the bank agreed with Angel to extend the escrow agreement to July 1, 1902. On June 12, 1902, Angel paid the bank the sum of $750 on this escrow agreement for which the bank issued its receipt, in which it was recited that “in consideration of which [the payment and assessment work] the option heretofore given on such extension is hereby extended for one year subject to all the conditions therein contained.” No further payment was ever made, offered or tendered by Angel or on his account under this agreement. The Bellevue Mining and Reduction Company continued to work and develop the property and expended something upward of $10,000, and finally in the month of June, 1903, quit work and abandoned the property and apparently forfeited their option. About this time the appellant Schenk, who was secretary of the Bellevue Mining and Reduction Company, came to Idaho and after looking over the situation and conferring with Whitmer, and being advised that the company refused to put
This suit was commenced in the lower court by Whitmer to obtain a conveyance from Schenk to the plaintiff of all the interest conveyed by the bank on the theory that the purchase price paid should have been credited on the option from Whitmer and Angel and that the title received thereunder should inure to the benefit of the plaintiff. The administratrix of Angel’s estate intervened and alleged that the $750 previously paid by Angel to the bank on his escrow agreement was a part of the purchase price paid for the bank’s interest in these claims, and that Schenk should be held as a trustee for the estate to the extent of 750-2500 interest in the property. The court found against the plaintiff Whitmer and the defendant Schenk, and in favor of the intervener, and decreed that defendant holds a 750-2500 interest in the property as trustee for the Angel estate. It has been argued that the last extension granted by the bank on Angel’s option had expired at the time the bank deeded the property to the appellant. This extension was made on June 12, 1903, and recites that the option is “hereby extended for one year.” The appellant contends that the one year was to run from June 12th, and introduced considerable oral evidence to that effect. In fact all the evidence in the case was to that effect, unless it be said that the writing itself contradicts such evidence. The respondent contends that since the option didn’t expire until July 1, 1902, and the extension was granted for one year, that it was intended that the year should run from the date on which the option would have expired instead of the date on which the extension was made. The court found,
The judgment is reversed and the cause remanded with directions to the trial court to make findings and enter judgment in accordance with the views herein expressed. Costs awarded to appellant.