The herald., 1898-10-28
GOLDfNCROSSDfCISION
JUDGE ALLEN RENDERS OP1N-
ION ON A CONTRACT
Liberal Construction Placed Upon the
Statutes Regulating Filing Of
Mechanics Liens

Judge Allen yesterday rendered written
opinion in the notable case of Overman
against the Golden Cross Mining company.
The decision is of special interest to those
engaged in the drilling of oil wells.
It appeared upon the trial that certain
defendants, the owners OF mining claim,
entered into a contract with D,tncomb 4
Sterner, by which they agreed that they
should complete an oil well producing ell in
paying quantities, and when so completed
they would convey to them an undivided
one-third interest in the claim. Duncomb IL
Sterner entered into contract with plain
tiii to work for them as drillers, and new
contract was entered into later by which
plaintiff was to have a certain per diem, pay
able when the well produced oil in paying
quantities.
Under this agreement the well was sunk
until stratum of sand rock was reached,
which yielded some oil, when Duncomb 4
Sterner refused to further carry out their
agreement or sink the well further, and, as a
consequence, plaintiff, whose only duty was
to perform labor upon the machinery and
tools furnished him, ceased work. Assuming
that the amount of oil developed in the
| well was sufficient to cover the contract,
| plaintiff filed his claim of lien for the amount
of his labor performed, within the proper
| time. This claim of lien set forth that by
the contract the price of the work was pay
able upon the completion of the labor.
| Judge Allen says: "The testimony shows
that the contract was that it was payable
when well was completed which should
produce oil in paying quantities. 1t is con-
tended that this variance is fatal. l do not
so regard it. The recent decisions of our
supreme court justify liberal construction
of these liens, and under almost any fair
construction, the statement in the claim Of
lien amounts to practically the same as the
contract established
| The labor was completed when the well
was completed, and the well was completed
when oil was furnished in paying quantities.
:. Sterner alone contracted with
plaintiff. The other co-defendants had moth.
ing to do with it, and no act of theirs is
shown indicating an intention upon their
part to contract with the plaintiff.
While it is true that it is not satisfactorily
shown that the well is completed, yet it is
shown that plaintiff was prevented from
performing his contract by the act of Dun
comb & Sterner, and, under the well-cstab
lished rule that prevention by one party ex
cuses performance by the other, plaintiff
should be entitled to the benefits which
he would have obtained if the contract had
been performed by both parties !:
This benefit would be to have a finding
of the amount due him and lien against
the interest in the property owned by the
contracting parties. To the extent
|. of its value and Duncomb & Stern
er's right therein, in my opinion, plaintiff is
entitled to claim of lien under his notice
and proof.
Findings and judgment are therefore or
dered in favor of plaintiff for the amount o.
his claim, and lien is declared upon all in
terest, claim. and demand of Duncomb &
Sterner in and to the mining property de
scribed in the complaint, and all property
Of Duncomb & Sterner thereon situate Of
contained"