The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1917-07-05

he was to be permitted to extract and
ship ore from the mine other than ir
the course of development work; thai
through a fraud, perpetrated upof
him by and on behalf of the origina
owners, the date of his first payment
was expressed in the written contract
as December 3, 1912, and he was pro-
hibited from extracting ~and shipping
any ore, except that necessary to bs
removed in legitimately exploring are
developing the mine.
! CD That Wourms, who was his
attorney, regularly employed to safe
guard his interests under the contract
acting for and in colusion with the
mining company, defrauded and mis-
led him into allowing his rights to be
| forfeited and then, in hostility to him
purchased the property.
1t may be said with respect to APP
that the trial court found the facts
against him and, While there is sharp
rconflict in the evidence upon that
point, we are governed by a we'll es-
suit in equity, as well as in an action
at law, finding of fact made by the
| trial judge. who has had the benefit of
observing the demeanor Of witnesses
upon the stand and of listening to
their testimony, will not be disturbed,
because of conflict, if the evidence in
support of the finding, if uncontra-
dicted, is sufficient to sustain it. APP
plying this rule, an examination of the
record discloses that there is sufficient
evidence to sustain the action of the
trial judge in finding, as a fact, that
the terms and conditions of the oral
agreement between the parties We're
incorporated in the written contract.
Upon the second point, the trial
judge found that respondent Wourms.
was in the year 1912, and had been
for some time prior thereto, prac-
ticing attorney at law in the state of
Idaho and was we'll known to and up
on friendly terms with appellant; that
on or about the 18th day of Novem-
Der, 1912, appellant went from Wal
lace, Idaho, to Spokane, Washington,
for the purpose of employing an at
torney to represent him in the con-
troversy between himself and the or
iginal owners with reference to the
contract, as before stated, that after
his arrival in Spokane he was ap-
preached by 'Wourms to whom he
stated what his business there was
and the claims he was making in re-
gard to the terms of the contract and
his rights hereunder; that upon his
stating the fact that he was in Spo-
kane, for the purpose of securing an
attorney, Wourms told him that he
and appellant had always been friends
and that he could and would repre-
sent him in securing the rights he
claimed; that appellant then fully dis
closed the claims he was making with
reference to his rights as against the
original owners and made a full and
terms of the contract; that he there
upon employed Wourms to act as his
attorney in the matter and paid him
a retaining fee and Wourms accepted
the employment and the fee and un-
dertook to act as appellants attorney;
that on November 10, 1912, Wourms
wrote a letter to the Graeselli Chemj-
cal company of Park City, Utah, stat
ing that appellant had employed him
as his attorney to straighten out his
affairs, and wherein he asked for
copy of letter to appellant by
that company and which appellant
claimed had been intercepted by re-
spondent, Belts; that on the 23rd day
of November, 1912, Wourms, as ap-
pellant's attorney, prepared a notice
to the original owners, which was
transmitted to them, wherein he de-
manded a bond or option to purchase
the mining property on the terms and
conditions agreed upon between them
during their negotiations prior to the
3rd day of June, 1912, and stating that
unless they complied with his de-
mand within Is days from the date of
the notice he would institute suit for
specific performance and for damages
sustained by him through their fall
ure to live up to the agreement: that
appellant had several conversations
and consultations with Wourms at diff
ferent times with reference to his
claims under the contract; that on or
about the 10Th day of December, 1872
Wourms informed. appellant that he
had been, for long period of time
prior thereto, in the employ of the
mining company, that the company
was desirous of purchasing the prop
erty in question and that he, Wourms
would have to represent the mining
company with relation to the purchase
and could not further. represent ap-
4 pellant in the matter.
In view of this finding of fact
which is based upon uncontradictet
evidence, the conclusions of law ant
judgment in this case are erroneous
The trial judge further found. as
fact, that Wourms had been attorne,
for the mining company for more thai
one year prior to November, 1912, ant
that at M tiuna di1ripv fhasa ira aa r.