Hames v. Rust

THE COURT. This is an appeal by the plaintiffs from a judgment in favor of the defendant Deer Creek Union Mining Company a corporation.

On October 27, 1934, one George 0. Nihell executed to John A. Rust and S. W. Tull, a written lease and option to purchase two mining claims for the sum of $30,000, to be paid in specified monthly installments together with 10 per cent of all net proceeds derived from sales of ore extracted from the mines. The agreement was subsequently assigned by Rust and Tull to the respondent Deer Creek Union Mining Company on December 22, 1934.

Thereafter a series of events occurred as follows:

I. During the Pall of 1936, the time for the performance of the original agreement was extended.

2. On January 15, 1937, the defendant mining company was still in default of certain payments provided in said contract, and by a writing of that date Nihell waived such default “. . . till the financing program is completed. ...”

3. Regardless of the foregoing extensions of time and waiver, the owner, Nihell, on May 6, 1937, executed to plaintiff J. T. Hames, a. lease and option to purchase the claims on terms similar to those contained in the original lease to Rust and Tull. No mention was made therein concerning the agreement between Nihell and Rust and Tull dated October 27, 1934.

4. Again on June 19, 1937, Nihell waived in writing further default of the defendant company until “September 1, 1937.”

5. On June 21, 1937, Nihell executed another option to purchase the claims to plaintiffs J. T. and Jett A. Hames on similar terms, except that the purchase price was reduced to $20,000. This agreement was made subject to the October 27, 1934 agreement.

[726]. On the same date Nihell also executed to J. T. and Jett A. Hames an assignment of his interest in the original agreement of October 27, 1934, authorizing the assignees to collect the payments due thereunder.

7. On August 12, 1937, Nihell executed and delivered to the mining company a modification of the lease and option of October 27, 1934, whereby the balance due “before the 15th. day of November 1937” under the terms of said original agreement, was cancelled, and the monthly payments due thereafter were reduced.