Baum v. Rainbow Smelting

71 P. 538, 42 Or. 453, 1903 Ore. LEXIS 119

Opinion

Mr. Justice Wolverton

delivered the opinion of the court.

The single question involved is, was the trial court in error in granting the nonsuit? To determine this requires a brief statement of the evidence adduced pertinent to plaintiff’s cause: The plaintiff testified in substance, that he first went on the property in November, 1898; that he was out looking for magnesia ore and was referred to Thomason as a competent guide; that he made arrangements with him, as such, to take him to the locality of • the deposits; that while on the way Thomason took some ore from his pocket and inquired of the witness what it was, and, being informed that it was copper ore, replied, ‘ ‘ I have a little prospect over on the other side of the mountain, ’ ’ and requested witness to examine it for him; that, after going to the magnesia deposits, they went to the copper prospect; that Thomason showed witness where he had made a little cut three or four feet in width; and, employing his own language, the witness continued as follows: “He says, ‘'What do you think of that?’ and I says: ‘This only shows that there is mineral here. Can you show me any better showing than that?’ and he says, ‘Yes;’ and we went up on the croppings, and I saw there a vein about sixteen inches to twenty-four inches right in casing, — right in place; and I told him that he had probably a good thing here, and he said that he did not know what he had, and would like to know, and I told him that he had a very good prospect, for the showing made so far. He says, ‘If you want to go into this matter, you can buy an interest in here for about $300; ’ and I told him that that was out of the question; that I did not have the money to spend that way; and I told him that I thought I could place this before capital. ‘Well,’»he says, ‘do you think you can do that?’ and I told him I thought I could, ‘as you have the ore right there in place;’ and he says: ‘If you will place this before capital, I will give you a one third interest in the two claims. ’ He says, ‘ I have got one, and Cantile has got the other; ’ and I says: ‘ That is all right. I will do the best I can to place this before capital.’ We talked there for a while, and he said he thought there had ought to be a little better showing made, and I says that it will take considerable money to open up this proposition. I says, ‘You know what you have got, as the ore is right on top, and if you follow that right down, and make a little cut, you will expose the face of the ledge;’ and he said he thought that was right, and, if I was able to help out a little, they could do that; and I says, ‘What can you do with a little money?’ and he says, ‘What do you mean by a “little money”?’ and I says, ‘twenty dollars.’ He says, ‘We could run in here twenty or thirty feet with twenty dollars.’ I says, ‘Do you really mean that?’ and he says, ‘Yes.’ I says, ‘If that will help you out any, I will do that, so as to help you to make a better showing; ’ and this was agreed on finally, there and then, and we went down to the cabin again, and got the horses and went on down to Yolzines. In the-mean time he went on, and says, ‘I will see you at the post office down at Perdue’s. ’ So he came down there, and everything was all right. I took some samples right from the crop-pings. I took about thirty-five pounds, I should judge. I took that along with me, and I told him that I would have them assayed for him, to see how high they would run in copper. So we came down, and I left him at the post office, and he said that it would be all right; and then I came down to Portland, and had the samples assayed, and I think they ran at that time about 9 per cent in copper. Those samples were taken right from the croppings. ’ ’

Witness further stated that he had an assay made of the ore in Portland, and sent them a certificate of its value; that he paid for the assay; that he did not see Cantile at the time; that Thomason did the talking; and that he received a letter later from them, wanting more money, whereupon witness was interrogated and answered as follows: “ Q. What arrangements did you have with them about putting up the money? A. I asked him how much he wanted when I was there, and he said, ‘Twenty dollars,’ and I said, ‘All rig’ht, I would send him that, ’ and I did; and that was to be used for the purpose of making a better showing, so that I could place it before capital. Q. What agreement did you have with them in regard to this sixty-five dollars? A. After I came back home, he wrote to me and wanted more money, — wanted something like twenty dollars, — and I sent that amount; and he said when I came down I could give him the balance, of twenty-five dollars. Q. What was to be done with that money ? A. That was to be used in development work. I furnished this money for the expenses of the development work. They were to do the labor themselves free of charge. Q. Did you ever agree with them to give them any money for themselves ? A. No; no money at all. They were to furnish their own labor. Q. When was it intended that you should have this one third interest, — after you sold the mine, or at that time ? A. At that time. I was to receive it right on the ground. They told me they would give me this one third interest if I would place the property before capital, and I was to do my best efforts to place this property; and then, after that, this question about the money came up,--the question as to what he could do if he had twenty dollars. Q. State what this is: (Witness was handed paper marked ‘Plaintiff’s Exhibit 1,’ for identification.) A. After I sent that twenty dollars, I thought I would get an agreement in writing from them. I already had one verbally right at the mines. So I sat down at one of the hotels in Portland and wrote this out, and had them both sign it and send it back to me. Q. Are you familiar with Thomason’s signature ? A. Yes, sir; that is Thomason’s signature. Q. Do you know the other signature? A. It is Cantile’s name, but I do not know whether he signed it or not. Q. You received that back through the mails? A. Yes, sir. * * Q. You may state the circumstances of your going into possession of that property under that instrument after it was signed. A. In March, 1900,1 was in Sumpter, and I received a letter from Mr. Thomason, saying that he had struck very rich ore', and wanted me to come there. In fact, he sent me a sample, which I had assayed at that time, and it went 17 per cent. About a week after I received the letter I returned to Portland, and came on down, and arrived at the property about the first part of March, and met Mr. Thomason at the Perdue post office, and we went up to Mr. Furlong’s and had,lunch; and I asked him if he had powder and caps, and he said he had enough to put in three or four shots; and we started up and stayed overnight in his mother’s house, and the next morningi we went up and went to the cabin and made arrangements to stay there overnight (that is, the cabin at the mines), and then we went up to the property. Q. Did you go on the property ? A. Yes, sir. Q. What did you do on the property? A. As I stated, we took the powder and caps and tools along, and worked there. Q. Did you work there? A. Yes, sir; I shoveled out some of the ore, and held the drill for a while. Q. What acts of ownership did you exercise over it at that time ? A. I exercised ownership of a one-third interest in the two claims. Q. You did work on them? A. Yes, sir; I workbd there two and a half or three hours that afternoon, and we got out different samples of the ore. I helped Mr. Thomason there, and then, later on, his brother came up and helped, and I was there at the time. Q. In what capacity were you regarded, as to the title of that property-while you were there ? A. I was working there on the property as an owner, and I came there to see the property, and see if I could recommend it to capital; and at that time it was all right, and he said that I had my interest in it. Q. What view did Mr. Thomason take of it? A. We agreed right then and there that there was enough work done there to show the property up to capital. Q. Have you ever abandoned your rights there? A. No, sir; never. * * Q. Now, this mine mentioned in that agreement there, — what is the well-known name of that mine? A. ‘Rainbow mine,’No. 1 and 2. Q. The language in that instrument, ‘Rainbow claim, — what is meant by ‘Rainbow claim?’ A. Rainbow No. 1 and Rainbow No. 2, — the two claims that I had an interest in. ’ ’

L. L. Perdue, a -witness for plaintiff, testified that he resided at Perdue, Oregon, and was postmaster there, and, being interrogated regarding the signatures to plaintiff’s Exhibit 1, he replied that he would not be positive as to the signature of Cantile thereto attached; that he might have signed it, but that he was not sufficiently acquainted with his handwriting to identify it as his, but recognized Thomason’s signature as genuine. The paper marked “Exhibit 1,” and introduced in evidence, is plaintiff’s alleged muniment of title, and is as follows:

“We, the undersigned citizens of the United States, residents of Douglas County, do hereby give J. H. Baum one third interest in mining claim Rainbow, Rainbow District, this 18th day of January, 1899. R. W. Thomason,

“Witness: LeonL. Perdue. L. Cantile.”

1. This is all the testimony having any material bearing upon the question at issue, as we understand the controversy. The writing was admitted in evidence so- far as it purported to be the act of Thomason, but not as to Cantile; the signature of the latter not having been established as genuine, nor shown to have been subscribed by competent authority. An exception was saved to the ruling of the trial court in this respect, but we do not deem it well taken. No witness saw Cantile sign, or identified the signature to be in his handwriting, and no attempt was made to show that his name had been subscribed by another with his authority; so that the instrument, whatever may be its legal effect, cannot operate to devest Cantile of any interest he may have originally possessed in the mine.

2. But plaintiff’s counsel, notwithstanding, contend that the writing is, in effect, a present deed or grant of an undivided one third interest in both claims, and that the description contained therein is sufficient, with the extraneous proofs, to con vey tbe title to tbe whole, and, further, that it is competent to supply the omission to express a consideration therein by parol proof, and that such as was offered is quite sufficient and adequate for the purpose of validating the grant. Whether or not the description is such as may be aided by evidence aliunde, it is not necessary for us .to determine at this time, and we will therefore direct our discussion to a consideration of the nature of the instrument, in the light of the evidence adduced. We are impressed with the belief that it .is without validity as a deed or grant, and that it can have no greater effect than a contract to convey, if it may even be said to be effective for that purpose. As a contract to convey, it is manifestly insufficient to support plaintiff’s action, because it is not such a muniment as invested him with the present legal title, which is necessary for the maintenance of an action at law to recover possession of real property. Thomason made the proposition to plaintiff to sell an interest in the mine for $300, which the latter declined because he did not have the ready money, but indicated that he thought he could place it “before capital,” and Thomason replied: “If you will place this [the mine] before capital, I will give you a one third interest in the two claims. ’ ’ To this plaintiff answered: ‘ ‘ That is all right. I will do the best I can to place this before capital. ’ ’ Briefly stated, this is the substance of the verbal understanding to be extracted from the evidence, namely: The offer, on the one hand, coupled with a condition, and an acceptance on the other. Following this, plaintiff agreed to advance $20, not as a consideration, but to help in development work, so as to expose the ledge and make a better showing, and thereby to induce capital to take hold of it. He took some samples of the ore away with him, and on November 17th had an assay made in Portland, reporting the result to Thomason. Some correspondence followed, relative to money for the development work; and plaintiff advanced $20, and at the same time forwarded the writing in question for the signatures of Thomason and Cantile, probably intending to reduce to writing the whole of the verbal agreement theretofore consummated. This writing was returned to plaintiff in its present condition. When asked at what time it was intended that he should have his interest, he replied: “At that time, I was to receive it right on the ground. They told me they would give me this one third interest if I would place the property before capital, and I was to do my best efforts to place this property.”

Plaintiff was not put in possession at the time, and makes no claim to have so entered in pursuance of the agreement until some time near the 1st of March, 1900, — about a year and five months after the alleged verbal understanding was had, — at which time, he relates, he went upon the mine, and engaged in work upon it by shoveling and holding the drill two and one half or three hours, and obtained some additional samples, which proved to be much more valuable than the first, assaying 17 per cent in copper. According to his statement, he then worked upon the property as owner, and counsel now urge that he was thereby placed in possession. It is not questioned that defendant subsequently excluded him therefrom. Now, does this disclose a consideration sufficient to uphold the writing as a deed or grant to a one third interest in the mine ? Although plaintiff testified subsequently that he was to use his “best efforts to place this propei’ty,” it was merely his own construction of the agreement; and we must, notwithstanding, assume that he was either to induce some one or more persons with capital to purchase, or to make advances upon some such consideration as an interest in the mine, or to furnish means for its development and operation upon some arrangement whereby the owners would profit by his services, and not that he was merely to disclose or lay the fact before persons possessing capital that Thomason and Cantile had or were possessed of such and such a mining prospect in copper ore, as otherwise we would have a perfect exemplification of a reduciio ad dbsurdum. No person of ordinary understanding would enter into any such an arrangement. . Upon the other hand, Thomason and Cantile’s performance depended upon plaintiff’s observance of his undertaking; the word “if” being employed, which is always expressive of a condition. The writ ing, considering it to have been signed by both Thomason and Cantile, voices bnt one side of the verbal understanding, for plaintiff, referring to his purpose, said while on the stand: “I thought I would get an agreement in writing from them. I already had one verbally right at the mines, so I sat down in one of the hotels in Portland and wrote this out, and had them both sign it and send it back to me.” Now, in supplying the necessary consideration, it is developed that there is indissolubly coupled therewith a condition upon which the grant is dependent, which the plaintiff has manifestly not performed, so that, viewing the matter most favorably to him, he has not shown himself entitled to the legal estate — much less demonstrated that the alleged muniment vested him therewith. If such a consideration had been set out in the instrument, no one would venture to claim that it operated as a present grant. It would then read, in effect, as it does now, with this important addition: “Provided the said Baum shall place the mine ‘before capital.’ ” The condition is so coupled with the consideration that the grant cannot become effective until it is performed, and that it rests in a verbal understanding can make the writing no more effective to convey a present interest than if it had been fully set out therein. The agreement is not a specialty, being without a seal, and does not, within itself, import a consideration. Whatever possession plaintiff may have obtained was in pursuance thereof, and not as an independent transaction, so that there was no such transfer of possession as to vest plaintiff with the legal title, if it be conceded that it could have been so vested at the time. The testimony offered relative to the consideration did not contradict in any way the terms of the writing, and served only to show what the parties had in mind when the agreement was entered into, and to prove the terms of that part of the understanding which was not subsequently reduced to writing; and it was competent for that purpose, as well as to show the precise nature of the consideration intended for its support. These deductions are borne out by judicial interpretation: Chase v. Senn (Com. Pl.), 13 N. Y. Supp. 266; Rutland & B. R. Co. v. Crocker, 4 (Fed. Cas. No. 12,176); Taylor v. Dansby, 42 Mich. 82 (3 N. W. 267).

We have thus treated this ease because it is further urged that, by reason of the curative act of the legislature of 1899 (Laws 1899, p. 63), this instrument became operative as a deed, notwithstanding the informality of its execution. It follows that the judgment of the trial court should be affirmed, and it is so ordered. Affirmed.