SEAMAN, Circuit Judge,
after stating the facts, delivered the opinion of the court.
The transcript of record upon these appeals is voluminous—containing testimony, contracts, accounts, correspondence, and findings in reference to the transactions between Tod, Stambaugh & Co. and Shores Mining Company, commencing in 1897 and extending beyond the period involved in the present controversy. In the arguments of counsel at the bar and in the briefs like range of discussion appears concerning the facts and state of accounts in those transactions, together with various contentions as to the rule of application of payments and other propositions of law which are not, as we believe, involved in the solution of this plain issue of fact, under both bills, namely: Were means for payment of Mrs Shores’ liability in the hands of the appellant and his firm; and was it rightly understood between the parties, that such means were applicable and-thus applied? The answer to that inquiry upon our view of the undisputed evidence is free from difficulty, and neither calls for examination of the numerous transactions in detail between Tod, Stambaugh & Co. and Shores Mining Company in' their 'dealings under the contracts for mining’ and [373]*373selling ore, nor of the ultimate state of accounts between such principals. The conceded facts, however, of the inception, course, and character of that business, of circumstances therein having reference to the sub jest-matter of the present controversy, and the relations of those principals to the parties herein, enter into consideration and have important bearing.
On July 1, 18.97, when the contracts in question were made, the Shores Mining Company was in possession of the mines, under a lease, with ore mined and in stock pile which subsequently netted over $33,000; but was indebted for royalties and other claims in, a large amount, and without ready means to discharge the debts or carry on mining operations. Eugene A. Shores was president of this company and exclusive manager. Tod, Stambaugh & Co., through Mr. Billings, agreed to advance the money needed for these purposes, conditioned that they were to be the exclusive agency for marketing the ores. A so-called “sales-agency contract” was executed, which' specifies the various payments to be met l”r> them; provides that they are to report sales, remit balances, and keep- accounts,; that they are to have commissions and are to retain advances from the proceeds of sales.
Connected with and referred to in that contract, among the advances to be made, were the transactions in the present controversy. Mr. Shores held an option for conveyance to him of the fee of the mine so leased to his company upon payment of $13,000 cash, together with security for payment of $23,000 owing by the company for back royalties and labor claims. This option was deemed valuable and purchase thereunder mutually desirable; and to that end the mortgage and contract in suit were executed between Mr. and Mrs. Shores, of the one part, and Mr. Billings (who acted in truth for Tod, Stambaugh & Co.) of the other part. For the $22,000 notes were made by Shores, indorsed by W. H. Upham, and their application in conformity with the option was provided for in the “sales-agency contract” above mentioned. The contract between Mr. and Mrs. Shores and Billings provided that Billings was to pay the $13,000, take conveyance of the fee to himself, retain title to one-third, and convey two-thirds to Mrs. Shores when the amount of that share in the purchase money ($8,-666.67), secured by mortgage upon her homestead, was paid up. It further provided that Billings was to contract with the Shores Mining Company to reduce the royalties to be paid1 during the term of three years commencing with 1897 from 50 to 30 cents per ton; and that he was to retain and receive all royalties thereafter paid until the $13,000 and interest was paid up, such payments to apply upon the mortgage indebtedness. The mortgage and notes for $8,666.67 were executed in conformity with this arrangement.
These several contracts are of even date—July 23, 1897—and operation under the “sales-agency contract” was carried out during the shipping seasons of 1897, 1898, and 1899; and the findings state that transactions thereunder continued “until about March 12, 1900.” It is further stated in the findings that the aggregate of ore sold thereunder was 43,477 tons, yielding in gross $146,845.47; also, that royalties ,were charged and entered ifito the sales-agency accounts for 1897, “but no royalty was charged therein for 1898 or 1899.”
[374]*374The appellee Mrs. Shores owned the mortgage premises as her separate property; and thus gave the security upon which the' Billings contract for conveyance of the two-thirds interest in the mine to her was entered into. Her rights, both to satisfaction of the mortgage and conveyance of that interest, if the conditions thereof were performed on her behalf, are unquestionable. She was not a party to the sales-agency agreements, nor bound for the performance thereof, nor interested therein beyond such equities as were conferred by the arrangements, respectively, to have proceeds thereunder applied upon her liability. If such proceeds accrued and the understanding of the parties met in their application to the extent of that liability, no further questions arise under the issues; and the conclusions of the trial court are well supported. The evidence upon this inquiry, direct and inferential, is not only convincing, but substantially without dispute, and may be thus summarized:
On December 31, 1897, after the close of shipments for that season; Tod, Stambaugh & Co. charged up in their account with Shores Mining Company $4,830.70 as the share of proceeds then applicable upon the $13,000, commutation of royalty, all payable under the terms of their agreement, in 1897, “whether earned or not.” This is conceded to be the identical royalty provision made applicable for payments upon Mrs. Shores’ mortgage and contract liability. To the extent thus applied, pro rata extinguishment of that liability is found by the trial court and undisputed. As explained in their letter of January 27, 1898, instead of charging up the entire sum of $13,000, which was agreed upon, Tod, Stambaugh & Co. “deemed it best for the present to charge the royalty on the actual amount of ore shipped from the dock,” and were of opinion that such method could not “possibly disarrange matters in any way.”
Operations under the sales-agency contract continued during 1898 and 1899, with no friction or misunderstanding disclosed by the evidence, and no further account was kept of royalties; nor does it appear that the matter of closing up that account and the contingent affairs of Mrs. Shores were referred to between any of the parties until May, 1899. As stated in one of the findings (12) of the trial court, Tod, Stambaugh & Co. kept an account, throughout the operations, “in which all advances by the firm for the company, all receipts from the sale of ore, commissions, and other matters were entered, and a copy of such account was sent to the Shores Co. each month”; and periodical interest charges were made.
On May 16, 1899, Mr. Shores-wrote to Mr. Billings, inclosing weekly mine reports, and stating that their last monthly report was not received; also that he hoped to receive it before going “to Canada on Saturday next,” together with “a release of the mortgage on Mrs. Shores’ home and deed from you for her Y the land at mine.” On May 18, 1899, Mr. Billings answered:
“Monthly statement goes forward to-day.
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SEAMAN, Circuit Judge,
after stating the facts, delivered the opinion of the court.
The transcript of record upon these appeals is voluminous—containing testimony, contracts, accounts, correspondence, and findings in reference to the transactions between Tod, Stambaugh & Co. and Shores Mining Company, commencing in 1897 and extending beyond the period involved in the present controversy. In the arguments of counsel at the bar and in the briefs like range of discussion appears concerning the facts and state of accounts in those transactions, together with various contentions as to the rule of application of payments and other propositions of law which are not, as we believe, involved in the solution of this plain issue of fact, under both bills, namely: Were means for payment of Mrs Shores’ liability in the hands of the appellant and his firm; and was it rightly understood between the parties, that such means were applicable and-thus applied? The answer to that inquiry upon our view of the undisputed evidence is free from difficulty, and neither calls for examination of the numerous transactions in detail between Tod, Stambaugh & Co. and Shores Mining Company in' their 'dealings under the contracts for mining’ and [373]*373selling ore, nor of the ultimate state of accounts between such principals. The conceded facts, however, of the inception, course, and character of that business, of circumstances therein having reference to the sub jest-matter of the present controversy, and the relations of those principals to the parties herein, enter into consideration and have important bearing.
On July 1, 18.97, when the contracts in question were made, the Shores Mining Company was in possession of the mines, under a lease, with ore mined and in stock pile which subsequently netted over $33,000; but was indebted for royalties and other claims in, a large amount, and without ready means to discharge the debts or carry on mining operations. Eugene A. Shores was president of this company and exclusive manager. Tod, Stambaugh & Co., through Mr. Billings, agreed to advance the money needed for these purposes, conditioned that they were to be the exclusive agency for marketing the ores. A so-called “sales-agency contract” was executed, which' specifies the various payments to be met l”r> them; provides that they are to report sales, remit balances, and keep- accounts,; that they are to have commissions and are to retain advances from the proceeds of sales.
Connected with and referred to in that contract, among the advances to be made, were the transactions in the present controversy. Mr. Shores held an option for conveyance to him of the fee of the mine so leased to his company upon payment of $13,000 cash, together with security for payment of $23,000 owing by the company for back royalties and labor claims. This option was deemed valuable and purchase thereunder mutually desirable; and to that end the mortgage and contract in suit were executed between Mr. and Mrs. Shores, of the one part, and Mr. Billings (who acted in truth for Tod, Stambaugh & Co.) of the other part. For the $22,000 notes were made by Shores, indorsed by W. H. Upham, and their application in conformity with the option was provided for in the “sales-agency contract” above mentioned. The contract between Mr. and Mrs. Shores and Billings provided that Billings was to pay the $13,000, take conveyance of the fee to himself, retain title to one-third, and convey two-thirds to Mrs. Shores when the amount of that share in the purchase money ($8,-666.67), secured by mortgage upon her homestead, was paid up. It further provided that Billings was to contract with the Shores Mining Company to reduce the royalties to be paid1 during the term of three years commencing with 1897 from 50 to 30 cents per ton; and that he was to retain and receive all royalties thereafter paid until the $13,000 and interest was paid up, such payments to apply upon the mortgage indebtedness. The mortgage and notes for $8,666.67 were executed in conformity with this arrangement.
These several contracts are of even date—July 23, 1897—and operation under the “sales-agency contract” was carried out during the shipping seasons of 1897, 1898, and 1899; and the findings state that transactions thereunder continued “until about March 12, 1900.” It is further stated in the findings that the aggregate of ore sold thereunder was 43,477 tons, yielding in gross $146,845.47; also, that royalties ,were charged and entered ifito the sales-agency accounts for 1897, “but no royalty was charged therein for 1898 or 1899.”
[374]*374The appellee Mrs. Shores owned the mortgage premises as her separate property; and thus gave the security upon which the' Billings contract for conveyance of the two-thirds interest in the mine to her was entered into. Her rights, both to satisfaction of the mortgage and conveyance of that interest, if the conditions thereof were performed on her behalf, are unquestionable. She was not a party to the sales-agency agreements, nor bound for the performance thereof, nor interested therein beyond such equities as were conferred by the arrangements, respectively, to have proceeds thereunder applied upon her liability. If such proceeds accrued and the understanding of the parties met in their application to the extent of that liability, no further questions arise under the issues; and the conclusions of the trial court are well supported. The evidence upon this inquiry, direct and inferential, is not only convincing, but substantially without dispute, and may be thus summarized:
On December 31, 1897, after the close of shipments for that season; Tod, Stambaugh & Co. charged up in their account with Shores Mining Company $4,830.70 as the share of proceeds then applicable upon the $13,000, commutation of royalty, all payable under the terms of their agreement, in 1897, “whether earned or not.” This is conceded to be the identical royalty provision made applicable for payments upon Mrs. Shores’ mortgage and contract liability. To the extent thus applied, pro rata extinguishment of that liability is found by the trial court and undisputed. As explained in their letter of January 27, 1898, instead of charging up the entire sum of $13,000, which was agreed upon, Tod, Stambaugh & Co. “deemed it best for the present to charge the royalty on the actual amount of ore shipped from the dock,” and were of opinion that such method could not “possibly disarrange matters in any way.”
Operations under the sales-agency contract continued during 1898 and 1899, with no friction or misunderstanding disclosed by the evidence, and no further account was kept of royalties; nor does it appear that the matter of closing up that account and the contingent affairs of Mrs. Shores were referred to between any of the parties until May, 1899. As stated in one of the findings (12) of the trial court, Tod, Stambaugh & Co. kept an account, throughout the operations, “in which all advances by the firm for the company, all receipts from the sale of ore, commissions, and other matters were entered, and a copy of such account was sent to the Shores Co. each month”; and periodical interest charges were made.
On May 16, 1899, Mr. Shores-wrote to Mr. Billings, inclosing weekly mine reports, and stating that their last monthly report was not received; also that he hoped to receive it before going “to Canada on Saturday next,” together with “a release of the mortgage on Mrs. Shores’ home and deed from you for her Y the land at mine.” On May 18, 1899, Mr. Billings answered:
“Monthly statement goes forward to-day. In regard to the cancellation of the mortgage, it would be impossible to have this done before you go to Canada, but undoubtedly the papers will all be completed by the time you return. I do not think, however, that the papers should pass until the stock pile is weighed out. You need have no fears, however, but what the proper release-will be made all the way through.”
[375]*375It further appears that Mr. Billings wired later that “the mortgage would be discharged and papers sent within two or three days”; moreover, that the “stock pile” subsequently weighed out in the shipments 11,701 tons, thus overrunning the mine report (referred to in Shores’ letter), which was 10,803 tons. This correspondence was followed by the monthly statement for May, wherein the entry appears as of May 1, 1899, of “balance due for royalties on Shores’ ore and interest on same to May 1, 1899,” total amount $13,000, with the balance stated at $9,181, after charging up interest (compounded) at $1,011.70, and deducting the amount of royalty charged up December 31, 1897, $4,~ 830.70.
The fact alone that the total of the royalty allowance which was to apply upon the mortgage was thus charged up to the Shores Mining Company would not amount to satisfaction of the mortgage indebtedness. It might well have been so treated by way of advancement upon their contract, for a reasonable time, without operating as a discharge of Mrs. Shores’ liability. On the other hand, her mortgage was not made in terms applicable as security for the account of Shores Mining Company with Tod, Stambaugh & Co. in their various transactions; and it is obvious from all the circumstances that it was not so intended, and cannot be so treated. Its payment and satisfaction was not dependent upon the final state of account between those parties; nor was the appellant entitled to withhold discharge to abide such result in subsequent transactions and accountings. The meaning and effect of this May entry, therefore, must be ascertained in the light of the correspondence referred to, together with conditions then appearing, and irrespective of subsequent and unforeseen developments.
When Mr. Billings was thus called upon to close up the side transactions of mortgage and mine ownership, the operation under the sales-agency agreement was about entering upon the third season, with satisfactory performance and results thus far, good output for the ensuing season reported in the “stock pile,” and the proceeds in sight of a sale of 13,000 tons of ore to Cleveland Rolling Mill Company, on which $13,080 was paid to Tod, Stambaugh & Co. July 11th. The just inference from the correspondence and prior circumstances, followed by the entry in their accounts, is unmistakable, as we believe, that Mr. Billings and his firm were satisfied, not only that Mrs. Shores was entitled to present application of the royalty charge in payment of her liability, but that the status of their affairs with the Shores Mining Company justified such action on their part, and so made the entry referred to as their acknowledgment of payment. That this was their understanding, at least of the security of their account with the mining company at that stage, is corroborated by the terms of their letter (in evidence) of May 11, 1899, to Ashland National Bank, accepting an order drawn by the mining company upon them, for payment of a claim tíeld by the bank out of the mining company’s balance in such account. None of the testimony is in substantial conflict with the view above stated, and no other explanation appears for charging up the balance of royalty and interest computations in the May statement. .
With the evidence thus concurring to establish that there was mutual understanding of the parties in suctí settlement—and no different ver[376]*376sion was set up on the part óf the appellant or his firm until long after-wards, when new conditions had arisen—the rights of the appellees to" the relief sought in these suits were unaffected by the subsequent transa' actions or state of accounts between Tod, Stambaugh & Co. and Shores Mining Company. So neither the items of that account nor the amount of unpaid indebtedness are'within the present issues; nor is it needful to ascertain whether royalty or advances were entitled to preference under the agreements, or whether the “expenditure of a large amount of money in exploration work, from which it received no results” (vide appellant’s brief), was rightfully treated as advances thereunder.
Each of the decrees appealed from conforms to the foregoing view, aind' each is therefore affirmed.