Carter v. Rhodes

VAN DYKE, J.

The respondent, on December 24, 1894, was the owner of an interest in a certain mine known as the “Nickel Plate,” and on that date he and the appellant entered into an agreement, in writing, by which it was agreed that the respondent should sell, and he did sell, to the defendant one-half interest in said mine for the sum of five thousand dollars, four thousand dollars being paid on the execution of the

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agreement, and one thousand dollars balance to be paid only out of the net proceeds of the ■ working of the one-half interest in said mineral claim conveyed; “and that in no event shall the thousand dollars or any part thereof become a personal claim against the party of the second part’’—that is, the appellant. It was further provided in said agreement that the respondent should expend not less than two thousand dollars in the development of the mine, and at his own expense pay off and discharge liens and incumbrances that then existed upon the same. The terms and conditions of the agreement were kept and performed on the part of the vendor, the respondent, but before any part of the sum of one thousand dollars had been received, according to the agreement, the appellant, in the summer of 1895, became desirous of selling his said interest in the mine to one McCune, but the latter, before purchasing the same, insisted that the claim of respondent for the payment of the thousand dollars, the balance of the purchase price, should be canceled and released, and that said mine should be clear of incumbrances. The respondent claimed that if the appellant sold his interest in said Mine he would become personally liable for the thousand dollars, but this was denied by the appellant. However, McCune would not buy unless the respondent released his claim on the mine, and the appellant, in order to make the sale to McCune, requested the respondent to make such release, which he did, but with the understanding that it did not release the appellant from respondent’s claim, and that appellant would become personally responsible to him for the thousand dollars. Thereupon the sale was made by appellant to McCune of his interest in the mine, after the respondent had executed a release and abandonment of his interest in the mine, according to the agreement. The appellant thereafter failing and refusing to pay the thousand dollars, this action was commenced. The appeal is taken from the judgment in favor of the plaintiff in said action and from the order denying defendant’s motion for a new trial.