Jackson v. Scurr

BROWN (Gerald), J. Plaintiff, cross-defendant and appellant, B. B. Jackson (hereinafter called Jackson), sued to quiet title to certain unpatented mining claims designated as Iron Pot one through thirty-five. Defendant, cross-complainant and respondent, Happy Scurr (hereinafter called Scurr), answered and cross-complained to obtain ownership of an undivided one-half interest in said mining claims, subject only to Jackson’s being paid $2,740 out of production from the claims, and upon payment in full Scurr to be entitled to a conveyance and transfer of such interest. Prom a judgment granting the relief sought by Scurr, Jackson has appealed.

On April 23, 1958, the parties agreed, in writing, for Jackson to convey to Scurr his undivided one-half interest in the mining claims for $4,000, $200 being paid at that time, with the balance of $3,800 to be paid on or before June 1,1958. Upon payment of the balance Jackson would quitclaim his interest to Scurr.

On June 7, 1958, the parties met at the office of Scurr’s attorney; Scurr paid $250 leaving a balance of $3,550 and Jackson agreed to provide documents of ownership and title before the balance was to be paid 60 days later.

On June 21, 1958, Jackson was paid an additional $10. Scurr paid $300 more August 29, 1958, reducing the balance to $3,240; because Jackson failed to produce the promised documents the time for performance was continued to September 30, 1958. However, on September 19, 1958, Jackson, pressed for money, had a garage operator telephone Scurr [448]and request a payment on the balance due, during which conversation Scurr asked that Jackson accept 10 cents a ton from production to pay the balance and Jackson agreed. Later on the same day Scurr telephoned the garage operator and dictated an agreement which he reduced to writing signed by Jackson as follows:

“September 19,1958.

“In supplement to agreement made August 30, 1958 between B. B. Jackson and Dr. Happy S&urr, wherein B. B. Jackson gave Dr. S/curr extension to September 30, 1958 to pay balance due of Three Thousand, two hundred forty dollars ($3,240.00).

“Inasmuch as the Geologist report states there is not over 10,000 ton or iron, a running average of 60% with very high Silica and though Geologist recommenis we abandon the Iron Pot claims owned by B. B. Jackson.