The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1918-02-07

Tne decision or Judge Woverton, OF
the United States court at Portland.
in the action brought by the Ameri-
can Smelling & Refining company
against the Bunker Hill & Sullivan
company involving the construction of
the contract for the purchase Of the
ores from the Bunker Hill mine by the
smelling company, is of such great
interest to all who are identified with
the mining industry of the northwest
that the Miner feels justified in pub
fishing 1t in full, and it is here given:
The Decision.
The purpose of this suit Is for spe
cific performance and to restrain the
defendant company (herein to be
called the Mining company from sell
ing or delivering any of its lead silver
ores. concentrates or shines to any
person or corporation other than the
plaintiff (to be called the A. s. & r..
company herein). The present in
quiry Is whether preliminary in
junction shall issue pending the final
determination of the cause.
It Is only necessary at this time to
get an understanding OF those features
of the agreement between the mining
company Ito be called the Smelling
company that seem to be controlled
where the parties are not In accord.
These features must be construed In
the light of the events attending the
contamination of the agreement which
show the motives that induced 1t and
the purposes which it was intended to
subserve. In this we may be aided
somewhat by the treatment accorded
by the parties themselves to particular
provisions.
The Smelling company has a capital
stock Of 5000 shares Of the par value
of 800 per share. On March TO- 1905,
1t entered into and had contracts with
the Alaska Treadwell Gold Mining
company, Alaska Mexican Gold Min
ing company, and Alaska United Gold
Mining company and with the mining
company, the defendant herein, pre-
viously signed, for the purchase of
ores from each of the several compan-
les, for smelling purposes The plain
tiff company had also at the same time
a contract with the mining company
for the purchase of some of its ores
All these mining companies, either by
direct holding or through their stock
holders, were owners of shares of the
~ H., A. A.,
defendant mining company being the
owner of 1867 shares The A, S. & r.
company, acting through Bernard M
GAruch, effected a purchase of the
whole of the capital stock of the
smelling company, at a price exceed
ing $5,000,000. The stock was trans
ferred to the American Shelters Sc
ourities company, a New Jersey cor
poration, of the voting stock Of which
the A. S. & r. company held, and now
holds controlling interest, SO that it |
dominates the action of such New Jer-
sey corporation.
The defendant mining company was |
aware of all these relationships.
Contract With Tacoma Plant.
on March 30, 1905, the mining COM
rany entered into an agreement with
the Smelling company, which action
was within the contemplation of the |
Baruch purchase, whereby the form !
err agreed to sell and the latter to |
purchase all the silver ores shines,
and concentrates mined from all the .
properties owned or leased by the min
ing company, delivered (, O. b. cars at I
or near Wardner, Idaho, at sales prices
agreed upon, with certain stipulated
deductions. 1t was stipulated that the ,
products to be delivered should be of
a lead assay of between 30 per cent
and 70 per cent, and that the average +,
product should be of approximately the
same yearly average analysis and lead
assay as the shipments made from the
mines during any year of the twelve
years Immediately preceding the date
of the agreement unless the Smelling |
company should give its written con- Z
sent to the shipment to it of products {
varying from that standard in analy- I
sis and in lead assay, as to which it /
was given the option to purchase at S
the best going market rates and terms. I
For the purpose of determining the t
net sales prices the contract provides t
that the values of the contents of the t
product shall be ascertained as fol- C
lows (omitting silver and gold): t
Lead. The value of ninety per t
centum of the average sales price in a
the city of New York for common de- d
silverized domestic lead, in lots of o
fifty tons or more for shipment with Il
n thirty days, as made by the Ameri- W
IAN Smelling & Refining company, c,
Turing the week preceding the week
" shipment of the lot in question: II
subsequent changed, by agreement of cl
February 2S, 1907, to read ION the in
late of shipment of the ore"); when dc
yer the selling price does not exceed of
40 per one hundred pounds, and tn
vhen the price exceeds that sum, 90 &
er cent Of $40, and one-half of the CT
xcess. de
From such values, deductions are to in
n u. II