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

| Amazon Manhattan case by
which Patrick Burke is given immedi-
ate possession of the property and or
dering the trial court to fix reason
able time in which he shall pay to the
Consolidated Interstate Callahan Mi
ming company 100000, the price paid
for the property. The decision is by
Chief Justice Morgan, Judge Bulge
concurring. The attorneys in the ac-
ton were Robertson & Miller and
Fred l.. Tiffany for appellant and j.
e. Gyde and Graves Kizer & Graves
for respondent. The property involv-
ed is on Beaver creek, north of and
Iadjoining the RayJefferson group,
and is connected by tunnel with the
main shaft of the Interstate Callahan.
Quite large amount of ore has been
developed and it has long been re-
garded as property of great value
The decision of the supreme court is
in part as follows:
Text of Decision.
In June, 1912, and prior thereto,
Horace M. Davenport, Milton J. F'lohr,
Charles w. Belts Charles f. Asp,
William M. Clark, Thomas Keely, Ben
Stanley Revett and the estate of Bar
ry N. Hillard, deceased, of which
Charles W. Belts was administrator
hereinafter referred to as the original
owners, owned certain mining claims
located in Shoshone county, title to
which is the subject of this action.
Some time prior to June II, 1912, ne
gotiations We're entered into between
appellant and these original owners
which resulted in contract being ex-
ecuted, dated June 3, 1912, whereby
appellant procured an option to pur-
chase the mining. claims for the sum
of 100000. This contract for the
purpose of convenience, was expressed
in two papers. One providing for the
payment of $4,000 to certain of the
owners. the other of $4,000 to certain
others, and by the terms thereof $16,-
600 was to be due and payable on or
before December 3, 1912, $4,000 on or
before April 3, 1913, $4,000 on or be-
fore October 3, 1913, and $4,000 on or
before April 8, 1914. BY the terms of
the contract appellant was to be let
into immediate possession of the pro-
perty however, it appears from the
record as matter of fact, he was al
ready in possession and had been" for
some time prior to it's execution. 1t
was further provided that appellant
should have the right to mine, extract
during the course of development
work, not lying Or contained within
the boundaries of the underground
works as the same existed at the time
of the execution of the agreement, but
that no right was given him to stope
upon the ore bodies discovered, or
thereafter to be discovered. Time was
made the essence of the agreement
and it was provided that if appellant
should fail to make the payments, or
any of them, when due the contract
should be void and the amounts
theretofore paid should be retained by
the original owners and that appel
ants right to possession of the prop
erty should cease.
On the 4th day of December, 1912,
appellant having failed to fully make
the first payment the owners declar-
ed his rights forfeited and entered in
to contract with respondent, John H.
Wourms, similar in all important par
ticulars to that Heretofore entered in
to with appellant except that the first
payment of $4,000 was made immedi-
ately upon the signing of the agree
ment and the subsequent payments
were to be made on or before the 3rd
day of August, 1913, the 3rd day of
December, 1913, and the 3rd day of
June, 1914, respectively. The first
payment as well as those subsequent
ly falling. due was made by Wourms
with money furnished him for that
purpose by the mining company (Con-
solidated Interstate Callahan Mining
company. The original owners con-
lveyed title to the property by deed to
Wourms and he, subsequently, decided
1t to the mining company.
Appellants assignments of error
which are numerous. will not be sep
larately discussed. He makes two
principal contentious. a consideration
of which, we believe, will be decisive
of this case:
i ~ That it was orally agreed be-