Swanson v. McAuliff

BARNARD, P. J. This is an action to recover for services alleged to have been performed, as a caretaker of a mining property, under a memorandum dated March 9, 1936, reading:

“Myself P. W. McAuliff, owner of the White Mine, this day has made arrangements with Mr. Swanson to be at the mine & in event the mine is sold I am to pay Shorty $3.00 per day & if the mine aint sold he is to receive no pay.

‘ ‘ Chas Swanson. ’ ’

The court found that the mine had been sold, findings being filed on January 15, 1940, followed by a judgment on January 22, 1940. A minute entry shows that a motion for a new trial was denied on February 20, 1940. Notice of appeal from that judgment was filed on March 2, 1940. Amended findings and a modified judgment were filed on March 6, 1940. An appeal from this judgment was filed on March 16, 1940. The two appeals have been consolidated and presented upon one set of briefs.

The entire controversy is as to whether this mine was “sold” within the meaning of the memorandum agreement under which the services were performed. The appellant contends that this agreement should be interpreted as providing that the services were not to be paid for unless and [458]until a completed sale of the mine was consummated. The respondent contends that nothing more than a “contract of sale” or “agreement of sale” was required, and that upon the execution of an “agreement of sale, and delivery of possession of the mine to the buyers, the mine was ‘sold’, within the meaning of the contracting parties”. The respondent relies on the case of Eaton v. Richeri, 83 Cal. 185, where services were not to be paid for until mining property was sold or until a sum sufficient to pay for the services was realized from the mine. After the services were performed the defendant entered into a contract to sell the mine and received a partial payment which was more than sufficient to pay the claim of the plaintiff. The court sustained a judgment for the plaintiff saying that the time for payment arrived when the contract to sell was entered into and the partial payment was received. That case is not very helpful here unless the agreement now before us should be interpreted as providing for payment only out of funds arising from a sale of the mine. While the language used would lend considerable support to such an interpretation it is not necessary to pass upon the question thus suggested.

In view of the record before us, it is also unnecessary to decide whether this employment agreement should be interpreted as referring to a completed sale of the mine or to the entering into of an agreement to sell the same. If it be conceded that the latter interpretation is in accordance with the intention of the parties and should prevail, it is still true that an “agreement” to sell was required, in any event. Even under that interpretation it can not reasonably be supjDosed that the parties had in mind and referred to anything other than the usual mutual agreement whereby one person agrees to sell certain property and another person agrees to buy the same, that is to say, a valid subsisting agreement for the sale and purchase of the property.