Parker v. Herndon

Contract for Interest in Gross Proceeds of Sale of Mining Claims— Services of Mining Engineer—Action for Monet Due—Sufficient Complaint.—A complaint alleging that plaintiff was an experienced mining engineer, and contracted with defendant that in consideration of his services, as such, in making a survey, map and technical report as to the quantity and value of the ore in mining claims of which defendant owned one-half, he would pay for the actual expense incurred, and that, upon the sale of his interest therein, or any part thereof, he would pay to plaintiff one-sixth of the gross proceeds of sale, and that defendant sold part of said claims, for an amount in excess of $10,000, the exact amount of which, and of the sum due and unpaid, he cannot state, and asks that the amount due be determined by the court, and for an interest in the unsold claims, states a cause of action to recover the amount found to he due for the claims sold.

Id.—Apparent Cause of Action for Specific Performance of Contract as to Unsold Claims—Waiver and Abandonment at Trial —Objection upon Appeal.—The objection upon appeal that the complaint also purported to state a cause of action for specific performance of an interest in the unsold claims, and that it is insuffieient to justify such relief, if well founded, is answered by the fact appearing in the record, that plaintiff, at the trial, in open court, voluntarily waived and abandoned all right to the unsold portion of the property, and asked judgment only for one-sixth of the proceeds of the property sold. No demurrer having been interposed nor judgment rendered for specific performance, appellant will not be heard to object that the complaint did not entitle plaintiff to relief prayed for, but not granted.

Id.—Action not for an Accounting but for Breach of Contract.— The action, as shown by the record, is not for an accounting, but for breach of contract to pay a proportionate sum, which plaintiff is unable to state precisely for reasons alleged, and therefore asks the court to détermine the same and give judgment therefor.

Id.—Cause of Action not Barred by Statute.—The causé of action to pay one-sixth of the gross proceeds of the mining interests sold has no relation to the time of rendition of the services rendered as mining engineer, and could not accrue until the date when the sale was made and the purchase money realized thereupon which was to be shared; and where the record is silent as to the date when the sale in question was made, and the purchase money paid thereon, it shows no bar of the cause of action by statute.

Id.—Letters Leading to Oral Contract.—Where the facts were that the plaintiff received a letter from the defendant before the services were rendered offering plaintiff one-sixth interest in the property if he would render the services required, which was accepted, and in a subsequent interview it was orally agreed that he would pay to plaintiff one-sixth of the gross receipts from sales of the property if he would render the services requested, which were rendered accordingly, the cause of action was not based upon the acceptance of the offer made by letter, but upon the parol contract which resulted when the parties were brought together.