Wood River times. [volume] (Hailey, Idaho) 1882-1915, 1886-07-22
SOME GOOD TALK.

Idaho. Here it is:
Buck, j., dissenting. Conceding foI
the present that the contract in ques
ton is lease, with the option to pur.
chase, when does the lease go into
operation, and when is the option tc
purchase exercised? 1t seems to be
mutual. 1t is signed by both parties
and each covenants to do certain ae Is
AS a lease it was partly executed
when the defendants entered into
possession of the mine. Until the OPP
tiou to purchase was exercised the de-
PENDANTS held as lessees. Whenever
they exercised that option by the
terms of the instrument they held as
vendees. A sale is a contract where
by the ownership to property is trans
ferred. The sale is completed when
the possession and title pass from VEN
dor to vendee. In the ease at bar the
possession was in defendants; but I'M
der the lease the title remained in the
plaintiffs, the lessons. When the op-
ton to purchase was exercised the
title passed from the lessons to the
lessees, aud their relation changed
from lessons and lessces to vendor
and vendee. The lessees having pos
session under an agreement to pur-
chase, at purchase price of $4,000
the title passed. whenever they exer
cised their option by paying the pur-
chase price, or any part Of it,
BY the terms of the contract, all
money paid to The plaintiffs was to be
credited on the purchase price.
Whenever, therefore, a credit was SO
made, part of the purchase price
was paid, and, apprehend, the OPP
tion to purchase was exercised.
We cannot call this payment roy.
atty or rent, because to do so would
contradict the express provisions of a
sealed instrument. After the pur-
chase, this contract, which had oper
ated as lease, became, in its legal
effect, mortgage to secure the pay
ment of the unpaid purchase price.
1t is said that under the terms Of this
instrument the defendants could aban-
don the venture at any time. This
provision enables us to appreciate the
Importance of that provision which
makes the money paid purchase price.
To induce defendants to continue the
venture, and not abandon it, the plain
tiffs stipulate that every dollar paid
shall be credit in payment of the
mine. Can We say after, under this
inducement, the defendants have ex-
pended large amount of money,
and paid plaintiffs more than half the
amount OF the purchase price, that
the plaintiffs may alter or disregard
the express covenant which has been
the inducement to defendants outlay,
and say this $4,000 which YOU have
paid us is only rent? You have not
yet paid us any part Of the purchase
money; you have never exercised
your option to purchase. 1t is claim
ed that time Is the essence of the
contract. The general rule for the
purchase of the land is that time is
not the essence of the contact. L;
is claimed, however, that mining
property constitutes an exception
Certain text writers are quoted as
sustaining this exception. An in.
spection of these references, however,
give US but two or three ancient
Eaglish cases; no American cases are
cited. 1T this exception is established
by adjudication, 1t is remarkable that
upon this Coast, in the 40 years of
mining, no such case has been adiu-
Dictated.
The terms used in the contract
specifying the time at which the en-
tire purchase price should be made,
and when the plaintiffs might re- enter,
cannot be said to determine that time
is of its essence, for much stronger
language has been adjudicated as
meaning differently.
Conceding, however, for the argu-
ment, that this exception exists in the
case of mere options for the purchase
OF mining property, the question re-
mains, Is this contract simply an OPP
ton? 1t is admitted that it is unusual
in its terms, conditions and covenants,
and that it is difficult to construe. If
we attempt to construe it on the the
DRY that it is simply a lease with an
option to purchase, the terms used
will be unnecessary and confusing. If
we consider, however, the circum-
stances of the parties and the prop
erty at the time the contract was exc
cuted; that, as seems established by
undlsputed testimony, the plaintiffs
wished to sell, and the defendants TO
buy; that nothing whatever was SAID
OF leasing the property, and that the
word was first used in the contract
itself, and interpret this instrument
with the light which these circum-
stances afford, we may understand the
contract to be what it is alleged to be,
more than a mere option to purchase !;
that it was intended to secure the de-
PENDANTS in an anticipated large ex-
penditure of money, and to enable
them to secure the fruit of their labor
by finally obtaining the ttle to the