100 P. 957 | Ariz. | 1909
Frank and Josephine Powers, owners of a certain group of mines, entered into a contract with one Ferguson for their sale, under the terms of which Ferguson or his assigns were to make the payment therefor within a specified time, and in the meantime to have possession of the property and to operate the same. Ferguson was to do a certain amount of work per day, to reduce the ores, and to deposit the net proceeds therefrom derived by him in a bank to the credit of the Powerses, to be applied on the purchase price. By an escrow agreement under which the deed for the property was deposited with a certain bank, it was provided by the parties that, upon demand thereunto by the Powerses to the bank, the bank should ascertain whether Ferguson had deposited the net proceeds from the ores within fifteen days after their receipt by Mm from the smelter, and if such deposit was found not to be made, then- the bank was to return the deed to the Powerses. The World’s Fair Mining Company subsequently succeeded to Ferguson’s interest in the contract, went into possession, and operated the mines under the contract. On June 6, 1904, the company received several thousand dollars proceeds from ores smelted, which, on June 11th, the Powerses attached in an action brought by them on the ground that the company was intending to convert them to its own use contrary to the terms of the contract, and at the same time obtained a temporary injunction against the company restraining it from shipping other ores. The injunction was shortly after dissolved, but the attachment remained in force. On June 25, 1904, the Powerses dispossessed the company by forcibly taking the possession of the mines from it. The company thereupon brought this action for damages for the breach of the contract by the Powerses.
The answer, while admitting the 'execution of the agreements, denied generally the allegations of the complaint; alleged that neither the plaintiff nor its predecessors in interest had complied with the conditions of the contract; alleged that the plaintiff and its predecessors in interest had retained and converted to their own use certain proceeds from the reduction and sale of the ore to which the defendants were entitled under the terms of the contract; alleged that the attachment and garnishment set forth in the complaint was necessary by reason of the intention of the plaintiff to use the funds and so to convert the proceeds of the ore due to the defendants to its own use; and further alleged improper and wasteful management of the mines by the plaintiff, and prayed judgment dismissing the complaint.
The plaintiff, for reply to the answer, denied that at the time of the attachment it owed all of the money attached by the Powerses, and alleged that it was not its duty to make payment of such amount as it did owe on the date of said attach
Upon the trial, and at the close of the plaintiff’s case, the court directed a verdict for the defendants, and from the judgment entered thereon and the denial of a motion for a new trial, the plaintiff has appealed.
The only assignments of error wlíich are properly before us upon the record pertain to the action of the trial court in directing a verdict for the defendant, and in refusing to permit the plaintiff to introduce in evidence the record of the proceedings in the injunction and attachment suit brought by the Powerses against the company.
Pending the payment of the purchase price the contract allowed the company to go into possession and operate the mines. This it did. The contract further provided that the net proceeds received from the ores during such period should be deposited to the credit of the Powerses. No time when such deposit should be made was specified in the contract. By the escrow agreement the time was fixed at a time within fifteen days after their receipt by the company. By the 20th of June, 1904, therefore, under the evidence in the case, the company was required to make the deposit of the proceeds received by it on June 6th. The evidence showed that such deposit was not so made. "Was this condition, to wit, that the company should deposit the proceeds realized from the ore, a condition mutual and dependent, or one which was independent of the
In the complaint in the case before us there is no allegation of the performance of the particular condition in question. There is no general allegation of performance on the part of the plaintiff of the conditions of the contract on its part to be performed, such as is permitted by our statute. There is no allegation either of nonperformance or of excuse for nonperformance; the complaint is silent as to any act of the company in compliance on its part with the terms of the contract, further than the allegation that it was in possession of the mines and of certain ores in process of shipment therefrom. The allegations in the complaint with respect to the attachment suit nowhere state or suggest that thereby the company was prevented from depositing the ore proceeds or from performing any obligation on its part to be performed under the contract. So in the plaintiff’s reply, even though by the answer the failure of the company in this respect was directly averred, there is no direct allegation that the attachment proceedings prevented in any manner the company from depositing the ore proceeds, except such as might be inferred from
With the pleadings in this condition, the plaintiff offered upon the trial to put in evidence the record of the attachment suit. The offer was refused by the court. It is to be borne in mind that this is not an action for damages by reason of the attachment or injunction issued. If damages were sustained by the company by reason of that suit, the remedy is upon the bonds therein given, and such remedy is not sought here. This is an action for breach of the contract by the Powerses, and it is not claimed and cannot be claimed that the attachment suit constituted such breach, for thereafter the company continued to work the mines, and the detrimental effect, if any, upon the company of the institution of the attachment suit, had been overcome by the company prior to the commencement of this action, as is shown by the complaint itself, wherein it is alleged, “but that when plaintiff had finally succeeded in overcoming the conditions occasioned by the wrongful and unlawful acts of defendants, and on or about the twenty-fifth day of July, 1904, the defendants unlawfully and wrongfully, and with force and arms, entered in and upon the possession of the said mines and mining claims. ” The pleading and proceedings in the attachment suit were not material, therefore, except as they might serve as an excuse for the company for the nonpayment of the ore proceeds; but it is evident that the institution of such suit in itself was not a legal excuse for nonperformance, unless such suit and the resulting attachment did, as a matter of fact, prevent the payment. If it did so actually prevent the payment, the evidence was clearly material; if it did not so actually prevent it, the institution of the suit itself and the issuance of the attachment afforded no excuse, and the evidence offered was immaterial. The difficulty with respect to the admission of the evidence is that there is no allegation in the plaintiff’s pleadings to support the contention that such suit did prevent performance and (hence render the evidence admissible. That this was the
“The Court: I think that is material if it is offered for the purpose of showing why you did not make payment of the amount due undér the contract.
“Mr. Hereford: That is one of the reasons, if the court please.
“The Court: If that is an excuse for nonperformance — if you offer-it for that purpose—
“Mr. Hereford: It is for that, among other purposes.
“The Court: I think this, that if you are required to pay a certain sum of money under your contract on a certain day, and in order to prevent you from doing that they garnished and attached the money wrongfully, then I think you are entitled to show that fact as an excuse for not paying the money on that day. ...
“Mr. Ives: I object to it on the grounds as stated. We object to it on the grounds that it is immaterial; on the ground that it does not tend to show any breach in the contract by the defendants in this action, or either of them; on the ground that there is nothing in the complaint to show that the attachment was gotten out maliciously or without probable cause, or that the complaint does not sufficiently state that it was gotten out maliciously or without probable cause, and that the complaint does not sufficiently state a cause of action by reason of the getting out of the attachment without probable cause.or maliciously, and upon the ground that it is not an action which is brought upon the bond given upon the issuing of the attachment or the injunction; and on the further ground that the complaint not having that set up a performance of the contract by the plaintiff has not been proven by the defendant, and if it would be admitted upon the theory that it would be an excuse for nonperformance it is premature.
“The Court: I am inclined now to sustain the objection.
“Mr. Hereford: Further, if your honor pleases, the issuance of the attachments and injunctions prevented us from shipping the ore and extracting the ore, and I offer to show also that the garnishment prevented us from the right to take our own money and pay our employees, so that we could go ahead*293 with the contract, and that we were unable to go ahead with the contract by reason of it.
“The Court: Counsel has stated in connection with this offer that one of the purposes of the offer is to show an excuse for the nonperformance of certain requirements of the contract, or I do not correctly understand you. That is one of the purposes of your offering this testimony, as I understand you. Now, I am inclined to this view that, you not having pleaded nonperformance and excuse, you may not at this time show it. I will rule against you on the merits. I do think this might be admissible for the purpose of showing nonperformance, but that you, not having pleaded nonperformance and excuse, may not show it' at this time.
“Mr. Hereford: Then we make the same offer for the general purposes of the ease, and for the purpose of showing that we were deprived thereby, by the different acts stated, of the right to extract the ore and obtain $12 a ton therefor, and of the benefits we were to be entitled to under the contract without breaking the contract.
“Mr. Ives: We object to that on the same grounds stated before.
“The Court: I shall sustain the objection. Your remedy, I think, is upon the injunction bond. I have ruled on that to this effect. It is not admissible at this time to show nonperformance. In yoiir complaint you have not alleged nonperformance and excuse; you are not now entitled to show it.
“Mr. Hereford: We do not offer this to prove nonperformance.
“The Court: And you do not offer it as an excuse for nonperformance?
“Mr. Hereford: I offer it as an excuse for nonperformance, as proof of nonperformance, and a deprivation of certain rights.
“The Court: I shall rule adversely to you.”
No request having been made to amend the complaint^ to conform to the proof offered, although the limitations of the complaint were thus directly brought to the attention of counsel, we think, on the pleadings as they stood, the trial court could not do otherwise than to refuse to admit the record in the attachment suit, and the further proof that was offered
The evidence of the plaintiff showed at the close of its case on the 25th of July the company was ousted from the premises, and the damages suffered by it thereby. This was a clear breach of the contract for which such damages might be recovered by the company, iff at the time they had the legal right to maintain the claim. But apart from the limitations of the complaint, the evidence of the plaintiff also affirmatively showed that the company itself had prior to the ouster failed on its part to live up to the requirement of the contract, in that the deposit of the ore proceeds had not been made as required, and no excuse therefor had been pleaded or proved. The company, having elected to continue under the 'contract after the alleged acts of interference and hindrance by reason of the injunction and attachment suit, was bound to perform its covenants or plead and prove excuse for failure0so to do, and in default thereof, having itself committed the first breach of the contract, it could not maintain this action against the defendants for their subsequent breach of ouster. The trial court was therefore right in holding that on the pleadings and on the proof the company had not made out a cause of action, and in directing a verdict for the defendants. Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Loudenback v. Tennessee Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 402.
The judgment of the district court is affirmed.
