Hames v. Rust

THE COURT.

Defendant Deer Creek Union Mining Company appeals from an order granting a new trial to the plaintiffs on the ground of insufficiency of the evidence.

The action is one to quiet title in and to certain mining property. It appears that the plaintiffs claim an interest in the property by reason of a contract of purchase entered into with the owner Nihell on October 29, 1937, which contract amended or superseded an earlier contract substantially to the same effect and bearing date June 21, 1937. The interest of the defendant mining company in the property arises under a lease with option to purchase also executed by Nihell as owner on or about October 27, 1934, and thereafter assigned by the lessees therein named to the defendant mining company. As shall later appear, plaintiffs’ contract

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made reference thereto. Inasmuch as the instrument under which the defendant mining company asserts its adverse claim antedates by several years the plaintiffs’ interest in the property, the former would take priority unless, as alleged and contended by the plaintiffs, the defendant has defaulted in the performance of the conditions specified in its agreement and has lost and forfeited all rights thereunder. At the conclusion of the trial, the court below found that the defendant mining company had defaulted in the performance of its obligations under its lease in that it had ceased to operate the property for a continuous period in excess of thirty days and also had failed to make the instalment payments required of it. But, the court went on to find that the owner Nihell had thereafter granted to the defaulting defendant an extension of time within which to perform the terms and conditions of its contract and that its rights in and to the property had not therefore been forfeited or terminated. However, as already indicated, the court below subsequently granted the plaintiffs’ motion for a new trial on the ground of insufficiency of the evidence, the propriety of such order being challenged upon this appeal by the defendant mining company.

Examination of the entire record, including the evidence, definitely indicates that default had occurred in the defendant’s performance under its agreement. Therefore the rights of the litigants in and to the property must turn ultimately upon the issue whether the owner Nihell had waived and excused the defendant’s default by granting an extension of time. The evidence addressed to this point is decidedly unsatisfactory and in many instances conflicting which fact undoubtedly prompted the court below, in the exercise of its discretion, to grant the plaintiffs’ motion for a new trial. As shall presently appear, the attitude of the owner Nihell is difficult to comprehend for after he had entered into agreements covering the same property with both sides to this controversy he undertook to and did collect moneys from each when he must have known that the interests of one were necessarily adverse to the other and that collections could only properly be made from one.