Johnson v. Kirby

Thornton, J. Appeal by plaintiff from judgment. The action was against Charles K. Kirby, Mount Auburn Gold Quartz Mining Company, Maltby G. Lane, and Richard H. Lane. The court sustained the demurrer of defendant Kirby, of defendant the Mount Auburn Gold Quartz Mining Company, and of defendants M. G. Lane, and R. H. Lane, to the complaint, on the ground of misjoinder of parties defendant, and on the further ground that several causes of action have been, improperly united.

Whether the court ruled correctly on these demurrers is the question to be considered and determined. It is averred in the complaint that Solomon Johnson was, on the 18th of August, 1879, the owner of twenty-nine thousand shares of the capital stock of the quartz company above mentioned (the whole of the stock of this company ivas divided into thirty thousand shares); that on that day he entered into a contract in writing with defendant Kirby, by which it was agreed that in consideration of the terms, covenants, etc., of a contract thereafter to be entered into with the above-named quartz company and Kirby, whereby the latter binds himself to sink a main working shaft upon the Mount Auburn Gold Quartz Ledge to the depth of four hundred feet, and to drive certain drifts, etc., and in further consideration of the sum of one thousand dollars received from Johnson, the latter sold and assigned to Kirby sixteen thousand shares of the stock above mentioned, and transferred these shares to the latter on the books of the defendant company. It was further agreed between the parties that if Kirby should discontinue the above-mentioned work and abandon its prosecution, that he should re-transfer to Johnson the aforesaid sixteen thousand shares of stock.

[484]There are other terms in this contract, but they have no reference to the matters in dispute here.

The pleader then proceeds to set out the contract in writing between the defendant corporation and Kirby, above referred to, by which the latter agrees to do the work above stated, in consideration of the rock and ore which he may obtain and take from, the mine in doing the aforesaid work on it, the company to be at no expense for doing said work further than the rock and ore above referred to. It is further agreed that Kirby may discontinue the work whenever he chooses, without any liability for damages to the company for non-completion of the work.

In pursuance of Johnson’s agreement with Kirby, the former assigned and transferred to Kirby on the books of the company, the sixteen thousand shares of stock aforesaid; Kirby commenced the work, did not complete it, afterwards abandoned it, and refused to perform it, whereby it is averred Kirby became liable to re-assign and re-transfer the shares aforesaid to the successor in interest of Solomon Johnson.