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LOVE et al., Interveners). (Supreme Court of Idaho. Sept. 4, 1906. On



Where H. enters into an agreement with H. and G., whereby it is agreed that H. will pay $7,100 for a certain mining claim, and pays in cash $100 thereof, and agrees that the balance shall be due February 3, 1905, and that H. will pay the expenses for procuring a patent to said mining claim, and that time is of the essence of the contract, and that thereafter on February 3, 1905, II. deposited the $7,100 with the bank, as provided by the escrow agreement, with instructions to hold the same until the receiver's receipt for the patent of the mining claim has been issued, and thereafter the receiver's receipt is procured and filed with said bank by II, and G., held that the bank was justified in paying the money over to H. and G. after said receipt was so procured. 2. SAME -- MINES AND MINERALS-PURCHASE OF MINING CLAIM-CONTRACT.

Where, under said agreement, H. agreed to pay the cost of procuring the patent to said mining claim and H. and G. proceeded and procured the patent, held that H. is liable for the cost of procuring the same 8. SAME.

Where several writings constitute one contract, such writings must be construed together.

[Ed. Note.--For cases in point, see vol. 11, Cent. Dig. Contracts, 88 746-748.] 4. SAME.

Where one party to a contract has fully carried out his part thereof, and the other party has paid the consideration for the property involved, and there remains on his part the obligation to pay the expenses of procuring a patent to the mining claim involved, a judgment against him for that amount will not be disturbed on appeal. ·

(Syllabus by the Court.)

Appeal from District Court, Ada County; George H. Stewart, Judge.

Action by Frank W. Hunt against the Capital State Bank. S. C. Godlove and S. A. Hindman intervene. Judgment for de fendants, and plaintiff appeals. Affirmed.

Alfred A. Fraser, for appellant. Ira E. Barber, for respondents. Johnson & Johnson, for interveners,

hereby agree to sell said claim to F. W. Hunt of Boise, Idaho, for a price of seven thousand ($7,000.00) dollars, to be paid to our order at the Capital State Bank, at Boise, Idaho, on or before the 3rd day of February, 1905, and that we will execute and deliver deeds for said property at the said bank to said F. W. Hunt, and will agree that the title to said property shall be good, and will proceed without delay to the survey and patent of said Buffalo claim, the said F. W. Hunt or assigns to pay the costs of patenting excepting the preliminary survey. [Signed] S. A. Hindman, S. C. Godlove." Thereafter,

" on the 2d day of December, 1904, a deed to said mining claim was placed in escrow with the defendant bank, to be held and to be delivered to the appellant according to the following instructions, deposited with the bank at the time of depositing said deed, to wit:

"Placed in escrow in the hands of the Capital State Bank to be delivered to F. W. Ffunt, if he shall make all the payments as below specified, otherwise, to be subject to the order of S. C. Godlove and S. A. Hind. man of Warrens, Idaho.

Agreement. Consideration

$7,100 00 Cash paid.....

100 00 Due Feb. 3, 1.905.....

$7,000 00 Due Feb. 3, 1905, expense incurred in

procuring patent.

"There will be no obligation on the part of s. C. Godlove and S. A. Hindman to de liver above-described deed unless payments are made as above, time being the essence of the agreement."

On the 3d day of February, 1905, appellant paid into said bank $7.000 to the credit of the interveners, and at the same time de livered to the bank the following writing, to wit: "Agreement dated November 3, 1904, between S. C. Godlove, S. A. Hindman to F. W. Iunt. Filed at request of F. W. Hunt, February 3, 1905, to accompany escrow agreement between above parties dated December 2, 1904. To the Capital State Bank of Idaho, Ltd. Payment of $7,000.00 being made this 3d day of February, 1905, to S. C. Godlore and S. A. Hindman by F. W. Ilunt, in accordance with the terms of said escrow agreement and said agreement of November 3, 1904, you are hereby instructed to hold said amount until receiver's receipt in application for patent of said Buffalo claim has been issued. F. W. Hunt." Thereafter the interveners proceeded with their application for a patent and on the 21st day of October, 1905, the intervener Hindman presented the receiver's final receipt for the sum of $105, that being in full payment for the area of land embraced in said Buffalo lode mining claim. On the 27th day of October, 1903, the appellant delivered to the bank the following notice in writing: “Boise, Idaho, October 27, 1905. The Capital State Bank, Boise, Idabo. Gentlemen :

SULLIVAN, J. This action was brought by the appellant to recover from the defendant bank $7,000, together with interest thereon, the principal sum of which had been deposited in the said bank for the benefit and use of the interveners, upon an agreement or option for the purchase of the Buffalo quartz mining claim, situated in the Thunder Mountain mining district, Idaho county. On the 3d day of November, 1904, the appellant and . the interveners entered into the following agreement: “Warrens, Idaho, November 3, 1904. In consideration of one hundred dollars, the receipt of which is hereby acknowledged, we, the undersigned, owners of the Buffalo quartz mining claim, situated on Thunder Mountain, Idaho county, Idaho,


I hereby notify you not to deliver or pay over to Godlove & Hindman, or either of them, or their assigns, the seven thousand dollars which you hold in escrow for the purchase of the Buffalo quartz claim in Thunder Mountain mining district, Idaho county, state of Idaho, as the terms of their contract with me were not carried out. Very respectfully, F. W. Hunt."

It appears from the testimony of the appellant, who testified at the trial of the case, that if he failed to make the payment of $7,000 on the 3d of February, 1905, the option of purchase expired; that he saw one of the interveners about getting an extension for the payment of that sum, and was informed that the affair was entirely in the other intervener's hands, and whatever he did in regard to the matter would be satisfactory to him; that he failed to get an extension of time; that the option would expire on the 3d of February if the payment was not made, having failed to get an extension of time. The appellant then testified as follows: "I went to the bank on the 3d of February and I paid this $7,000. At that time the proceedings towards procuring a patent had not been completed. That was the reason that I asked for an extension of time. When I first got the option, we talked over the patent proceedings, and Mr. Hindman told me he was going right into Roosevelt to make the preliminary survey of the 'Buffalo,' and that it would take him only a few days; that he would come right out with his application for patent; it would be well under way and perhaps completed by the 3d day of February, 1905. *

* I knew this proceeding had not been completed at this time." It is apparent, from

, the testimony in the record, that the proceedings for a patent were not completed as early as the parties had anticipated, and that the appellant desired the bank to hold the money until the final receivers' receipt was issued for the land included in the Buffalo lode claim, thus making sure of a perfect title thereto. Apparently the interveners were satisfied to leave the money in the hands of the bank, as requested by the appellant. They thereafter procured said final receipt and deposited it with the bank, and the bank thereafter turned them over the $7,000. There is some conflict in the testi

. mony of the appellant and of the cashier of the bank as to conversations had between them. The trial court evidently concluded to accept the evidence of the cashier as true, and made findings of fact, conclusions of law and entered judgment in favor of the bank and the interveners. There appears to be a substantial conflict in the evidence, and where that appears, the appellate court will not disturb the judgment of a trial court.

The main contention of counsel for appellant is that said option expired on the 3d

day of February, 1905, as the payment of the said $7,000 on that day was not an absolute payment. From all of the evidence in the case, it is clear to us that it was an absolute payment of the $7,000. The intervener Hindman testified on the trial that he received a letter from the appellant in which the appellant notified him that he had made payment on the 3d day of February, 1905. The appellant testified that the expense of procuring the patent was not paid by him at the time of paying the $7,000, because the expense for procuring the patent was not known at that time. He also testified that he told the cashier of the bank, at the time he paid the $7,000, that after the receiver's receipt for the Buffalo claim was obtained, he, the cashier, could pay it to Godlove and Hindman. That being true, the bank was fully justified in paying said $7,000 over to the interveners, after the receiver's receipt was presented to its cashier.

It appears from the testimony that one of the interveners had a conversation with the appellant on the 19th of October, 1905, in which the former informed the appellant that he had received the final receiver's receipt, and at that time showed the same to the appellant, with an itemized account of the expenses or cost of procuring the patent; that the appellant looked them over and passed them back to the intervener and said, "It seems as though everything is all right"; that at that time the appellant informed the intervener that he was going away and would like it if the interveners did not make a demand on the bank for the money before he returned; that the appellant also said that it took so much time to get the receiver's receipt that he thought there ought to be some concession made to him, but did not say just what he wanted. The intervener saw the appellant again on the following Monday or Tuesday, and told him that he wanted to go down to the bank and straighten the matter up; that appellant informed him that he would like to have a discount of 10 per cent. and the cost of the patent remitted, and the intervener replied that they had fulfilled their contract and were entitled to their money without any discount or concession of any kind. Thereafter he had another conversation with the appellant, and appellant offered to straighten the thing up and release the money in the bank if he would give him $100 and the cost of the patent, and the intervener replied “that he could do that.”

The cashier of the bank testified as a witness on behalf of the appellant, and testified that the final receiver's receipt was filed and deposited with him on the 21st or 22d of October, 1905, when one of the interveners came to the bank and produced the final receiver's receipt and asked for a completion of the agreement in accordance with the escrow agreement. The cashier replied that “he would rather see the appellant, and for them to come in together"; and shortly thereafter

he saw the appellant and informed him that

contract between the parties that the sale said intervener was in the city, and had pre- was completed, and that the costs of procursented the receiver's receipt; that the cashier

ing the patent would be paid when the went and got the papers and said to the appel

amount was ascertained. The interveners lant that, "under the circumstances, he saw

fully carried out their part of the contract, nothing to do but to comply with the agree

and the appellant carried out his to the exment and pay the money''; that appellant

tent of paying the $7,000, and was bound agreed with him; that appellant said to the

to pay the cost of procuring the patent when cashier, “that if the envelope [on which was

that amount was ascertained. The object written the escrow agreement] could just be

of appellant in wanting the money to remain lost some way, that might afford some relief";

in the bank until the receiver's final receipt that in a conversation with appellant he

was obtained is apparent, and when such expressed a desire to get some allowance

receipt was received, it is apparent that made on the part of the intervener, in the

the appellant desired to get some concesnature of a concession, and he had about

sions from the interveners. It was for that 12 conversations with appellant during a term of about two weeks in regard to the

purpose that the appellant asked the bank

to delay payment from day to day. matter, and clearly indicated a desire to

I think, under the facts of this case, the get some concessions from the interveners,

interveners are entitled to recover from the and requested the cashier to defer the matter

appellant the cost of procuring the patent along from day to day; and the cashier did

to said mining claim. The judgment, thereso, hoping that the matter would be amic

fore, must be affirmed, and it is so ordered ably adjusted; that he thereafter submit

with costs in favor of the respondents. ted the matter to his attorney, who investigated the matter, and advised him to pay the

STOCKSLAGER, C. J., and AILSHIE, J., money over to the interveners, and the money

concur. was paid over. The witness further testified: That he knew that appellant was trying

On Rehearing. to get some concessions from the interveners, AILSHIE, J. A rehearing was granted in but when he found the money had been paid this case on the question of the liability of in accordance with the instructions, about appellant, Hunt, to pay the sum of $439.65, the first remark he made to the cashier was

the expenses incurred by the interveners in as follows: “I could have had something patenting the mining claims over which this over $200.” Thus intimating that he could

litigation arose. After hearing the case rehave procured some concessions, if the pay- argued, and a further consideration thereof, ment had not been made at that time.

we are satisfied that the original opinion It is clear to me, from the foregoing, that should be modified to the extent of holding the appellant considered the transaction clos- that the appellant is not liable for this exed and was endeavoring to get some conces- pense of patent proceedings. Conceding that sions. It is contended by counsel for the the agreement of February 3, 1905, was conappellant that the payment of the money on tinued in force, we are still confronted with February 30, with instructions not to pay this proposition: Under the original contract it over until the receiver's final receipt was the $7,000 and also the expense of procuring filed with the bank, was a change in the es- a patent was made payable at the same time *crow. Conceding, for the sake of argument, and place, namely, at the Capital State that that was so, the consent of the interven- Bank, Boise, Idaho, on February 3, 1905. ers to allow the money to remain in the hands Time was made the essence of the agreement. of the escrow holder, pending the issuance The payment of the $7,000 was not a full of the receiver's receipt, was no waiver of payment of the sum due on February 3d, or their rights. However, as we view it, the ,

upon the date to which that payment was money was absolutely paid on the 3d day extended. On the other hand, a receipt and of February, 1905. The writing of February

The writing of February | acceptance by the grantors of the amount 3d deposited in escrow became, upon ac- paid, and their refusal to return or surrender ceptance of its conditions by the interveners, the same, entitled the appellant, Hunt, to merged in the contracts between the parties, the deed, and legally relieved him from the and the contracts thus merged and modified payment of any further sum. The intervenmust be construed as a whole. Utley v. ers had the right to reject the payment until Donaldson, 92 U. S. 29, 24 L. Ed. 54. All the same was made in full, including both the the writings connected with this transaction $7,000 and the expense of patent proceedings. may be construed together as one contract, Under the conditions and circumstances surIt is clear that the interveners consented

rounding this transaction, we do not think to leave the money on deposit until the re- the grantors could accept a partial payment ceiver's receipt was finally obtained And

of a sum that it had been agreed should be thereafter said receipt was obtained and the paid at a given time and place and still withmoney paid. The consent of the interveners hold the deed and compel the grantee to pay to not withdraw the money until the receiv- the balance before receiving the deed. It er's receipt was obtained, amounted to a would be otherwise if these sums constituted

separate installments or had been payable the land which he had agreed to convey to the at different times. In that case the grantors plaintiff. The defendant refused to accept the might receive and accept one payment, and, deed and abstract tendered him, and refused upon failure of the grantee to make any sub- to convey the lands to the plaintiff as he sequent payment according to the terms of had agreed, and the plaintiff brought this the escrow, declare the forfeiture provided action. The court sustained a demurrer to by the agreement and still retain the deed.

plaintiff's evidence, and rendered judgment The former opinion of this court will be for costs for the defendant. modified as above indicated, and the cause It appears from the evidence that, before is hereby remanded to the trial court, with the time fixed in the agreement for consumdirection that the original decree entered mating this transaction by an exchange of herein be modified in accordance with the

deeds, the plaintiff's title to the lands he had views herein expressed, to the effect that the

agreed to convey to the defendant had been interveners, Godlove and Hindman, be al

questioned. Thereupon he took his abstract lowed to retain the money deposited by ap

to his lawyers to examine his title, and he pellant with the respondent bank and by the

was informed by them that it was defective, bank paid to them, and that the deed for

and that it would require an action to quiet the mining property mentioned and described

the title in him. His attorneys instituted be delivered to appellant, and that no judg

such proceeding making some 50 named perment be entered against appellant for or on

sons and other unknown heirs defendants. account of expenses incurred in procuring

The lands were situated in Iowa. Personal patent. Appellant and interveners will each

service was not obtained upon any of the depay their own costs incurred on this appeal,

fendants. In an action to quiet title under and the respondent bank's costs will be divid

the Iowa statute service may be made by pubed equally between appellant and interveners.

lication upon all defendants upon whom perSTOCKSLAGER, C. J., and SULLIVAN,

sonal service cannot be made within the state. J., concur.

Before such service is authorized the Iowa statute requires the plaintiff to make and file

an affidavit stating that personal service can(74 Kan. 748)

not be made upon the defendants within the DENSER V. GUNN.

state. The plaintiff in his action to quiet (Supreme Court of Kansas. Dec. 8, 1906.)

his title undertook to get service upon the EXCHANGE OF PROPERTY - CONTRACT - CON–

defendants by publication for which purpose STRUCTION.

he filed an aifidavit of which the following Where a contract for the exchange of real

is a copy: "I, Jane E. Denser, being duly

, estate provides: “Both parties to give warranty deeds and abstracts showing titles. It is agreed

sworn, depose and on oath say, that some of that $1,500.00 shall be liquidated damages in the defendants hereto are nonresidents and case either party fails or refuses to carry his personal service cannot be made on them in part of this contract”-before either party can recover the stipulated amount of damages he

this state, that I have sought diligently to must tender an abstract showing a perfect record

learn their residence and have been unable title in himself free from doubt or outstanding to find them.” This affidavit does not comcolor of title.

ply with the requirements of the statute. It (Syllabus by the Court.)

states that “some of the defendants are nonError from District Court, Bourbon Coun- residents, and that personal service cannot be ty; Walter L. Simons, Judge.

made on them in this state.” The plain inAction by J. F. Denser against W. C. Gunn. ference from this language is that others were Judgment for defendant, and plaintiff brings residents. The affiant did not swear that error. Affismed.

they were all nonresidents, and that personal A. M. Keene and Arthaud & Arthaud, for service could not be made upon any of them plaintiff in error. W. R. Biddle and Hubert

in the state. Those who were residents and Lardner, for defendant in error.

upon whom personal service could be made

should have been so served. As to those who GREENE, J. This was an action to recov- were residents of the state and upon whom er a stipulated amount of damages for the personal service could have been made the noncompliance with a written contract for judgment quieting title was void. The trial the exchange of real estate. The contract court very properly held that a publication contained provisions that: “Both parties to notice based upon this affidavit did not give give warranty deeds and abstracts showing the Iowa court jurisdiction of all of the detitles. It is agreed that $1,500.00 shall be fendants named in the petition, and that a liquidated damages in case either party fails judgment rendered upon such service did not or refuses to carry his part of this contract.”

bar the defendants who were not properly The plaintiff executed and tendered a deed served from setting up their title at any fuof general warranty in form, and also an ab- ture time. Before the plaintiff could require stract of title of the lands he had agreed the defendant to accept his deed, and before to convey to the defendant, and demanded


he can recover upon the agreement, he must that defendant execute to him a warranty show that he has fully complied with all the deed and abstract showing title in him for conditions on his part. He must have presented such an abstract of title as upon its in several respects upon its face, and, at the face showed the title to the land which he suggestion of Gunn, some of these detects was offering to convey to be in himself. The were cured. As corrected the abstract showrecord which is epitomized in the abstracted that at least one moiety of the title which must show a good title in the vendor. The had been in several heirs was not in Piper. contract called for a title good in fact and Information and notice aside from the abgood of record, and this the abstract did not stract was also given to Gunn that a certain show. Before the plaintiff could recover, he moiety of the title which by the abstract must tender an abstract showing an uncloud- appeared to be in Piper was claimed to be ed title. Kimball v. Bell, 47 Kan. 757, 28 Pac. in another. Also the evidence showed on 1015; O'Neill v. Douthitt, 40 Kan. 689, 20 the trial that at least one other moiety of Pac. 493. It should show that the title is the title which appeared to be owned by valid in every respect and not one that may Piper was really held in trust by him for be in the least clouded. Carter v. Improve- | another, and that the equitable owner thereot' ment Association, Limited, 108 La. 143, 32 had neither asserted nor relinquished the South. 473. When a defect in the abstract right thereto. The action was commenced will cause a reasonable doubt in the mind in April, 1903, was tried without a jury, and of a prudent and intelligent person acting the finding and judgment of the court was upon competent legal advice, the deed may in favor of Gunn, allowing recovery of the be refused. Whether the abstract introduced $300 paid on purchase price, without damin evidence by the plaintiff showed that he ages. had a good title was a question of law to It is contended on Piper's part that there be determined by the court, and not one of is no allegation or proof that Gunn performfact to be submitted to the jury. The court ed or tendered the performance of the conheld that, as a matter of law, the plaintiff's tract on his part. It is sufficient to say that, title was defective, that he had not complied so long as the abstract furnished by Piper with the terms of the contract, and was not showed his inability to convey good title by entitled to recover. With this we agree. a deed from himself and wife, it was neither

In this view of the case the other errors necessary nor prudent for Gunn to direct to complained of become immaterial.

whom the deed should be made, nor The judgment is affirmed. All the Justices tender payment of the remainder of the purconcurring.

chase price, nor, assuming it to be a part

of the contract that he should pay interest on (74 Kan. 884)

a loan secured by mortgage on the land

to be conveyed, that he should pay interest PIPER v. GUNN.

which fell due thereon after November 1, (Supreme Court of Kansas. Dec. 8, 1906.)

1902, and before the commencement of the Error from District Court, Labette Coun- action. Paraphrasing the language of this ty; Thos. J. Flannelly, Judge.

court in Denser v. Gunn, 87 Pac. 1132, decided Action by John F. Piper against W. C.

at this session, before Piper could require Gunn. Judgment for defendant, and plain

Gunn to accept the deed of himself and wife, tiff brings error. Affirmed.

he must have presented such an abstract of

title as upon its face showed the title to the E. L. Burton and E. C. Clark, for plaintiff

land which by his contract he was obligated in error. Biddle & Lardner (M. E. Williams,

to convey, to be in himself. “When a defect of counsel), for defendant in error.

in the abstract will cause a reasonable doubt

in the mind of a prudent and intelligent perPER CURIAM. This action was brought

son, acting upon competent legal advice, the by the defendant in error to recover $500

deed may be refused.” Denser v. Gunn, paid upon a contract for the purchase of real

supra. See, also, authorities there cited. estate and for damages. The contract was in

The judgment is affirmed. writing and reads: "Parsons, Kansas, Oct. 9th, 1902. Received of W. C. Gunn, $500.00 being part payment on the N. E. 14 of sect. 10, and S. E. 14 sect. 3, range 32–20. All

(74 Kan. 164) in Labette Co., Kans, price to be seventy-five

CITY OF TOPEKA V. JONES. hundred dollars, five hundred dollars now rec.

(Supreme Court of Kansas. Nov. 10, 1906.) and balance of $7,000.00 to be paid on or before 25th day of December 1902.

I agree

On rehearing. Affirmed. to furnish abstract showing good title, and For former opinion, see 86 Pac. 162. make warranty deed to any person W. C. Gunn may desire, and send same to First SMITH, J. After listening to the oral arNational Bank of Fort Scott, Kansas, for guments made and a careful consideration of collection, and give possession March 1st, the briefs filed on the rehearing of this case, 1903. John F. Piper. Mary F. Piper. W. the position of the members of the court is C. Gunn is to take care of loan after Novem- not changed. The majority adhere to the

. ber 1st, 1902.” Prior to December 25, 1902, opinion filed, and the dissenting justices adPiper furnished Gunn an abstract defective here to their dissent.

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