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

entered into a further supplemental
agreement, which was to apply from
June !. 1910. to June l, 1915, whereby
| 1t was agreed that in addition to the
terms Of payment stipulated for in the
principal agreement. the mining COM
pany should receive So cents per ton
for each ton of ore delivered contain
ing a lead assay Of between 80 and rs
per cent BY the fourth paragraph, 1t
was further stipulated that the smelt-
ing company should not assign nor
transfer the said original or supple
mental contract prior to November II,
1915, without the written consent Of
the mining company.
Terminate Other Contracts.
Prior to the date Of the contract
here in controversy, the mining COM
pany had contracts for smelling with
the following smelling companies:
Tacoma; Ohio & Colorado, Pennsyl-
vania, Selby and American Smelling a.
Refining company the plaintiff herein.
The present agreement superseded, as
was the intention and the purpose of
the parties the contract with the Ia
coma company. The first supplement
al agreement provides for termina-
ton of the contracts with the three
companies as aforenamed following
the Tacoma. And 1t was further the
purpose of the present agreement to
wholly supersede the agreement with
the American Smelling & Refining
company. So that, in the end, the
smelling company acquired the right
to purchase all the ores of the min.
ing company. That such an arrange
ment, to eliminate In the agreement
that was finally entered into between
the smelling company and the mining
company superseding all other agree
ments on the part of the mining com
pany for disposing of its ores, was in
the minds of the parties concerned, in
Guiding the mining company and the
American Smelling & Refining co n
pany, at the time Baruch consumml IT.
ed the purchase of the stock of the
smelling company, can scarcely be
questioned. Whatever part the min
ing company may have had in the
consummation of the Baruch enter
prise to acquire, in the interest of the
American Smelling & Refining COM
many thu cornorata stool, Of the e,,o aIt
ing company, it surely was wholly
cognizant of what was taking place,
and was acting in pursuance of the
plan, to the purpose of finally obtain
ing from the smelling company an
agreement for disposing of, the major
part of its ores, If not the entire out
put. The mining company knew that
the hand Of the smelling company was
in the enterprise, and that it was real
~ the controlling factor in bringing
about the agreement of the smelling
company of March 20, 1905, to pur-
chase the mining company's ores.
Court CONSTITUTES Contract.
AS / construe the agreement, it is
that the mining company shall sell,
and the smelling company shall pur-
chase, all the output of the mines
which shall have lead assay rang
ing from 30 per cent to rs per cent. BY
way of further specification it is stip-
ulated that the average product shall
be approximately the same yearly an
alysis and lead assay as the shipments
made during any year of the ~ pre-
ceding years. The purpose, no doubt,
Of this latter stipulation was to secure,
as nearly as practicable, a uniform |
which Mr. Newhouse
thinks would average around SO per
cent lead assay
Prior to the date of the agreement,
~ far the greater proportion of the
output of the mine had been shipped
~ the mining company in proper
ion containing between 30 per cent
md rs per cent lead; and it is asserted
~ Mr.. Rust. who was until 1916 man
'ger of the smelter, that there never
vas q NhiS uutii TIE idltF controversy
hat the mining company claimed the
light of so compromising it's product
Is to reduce to low grade or increase
o high grade beyond that resulting
rom the usual and normal operations
II the mining and milling plants as
hey had heretofore and were then
'eing carried on. Mr.. Bradley dis
grees with this view, and asserts
hat, "The idea of providing for the
anne yearly average analysis and lead
ssay as the ore shipped in any one
ear of the preceding IL was to be
ure of being able to deliver to the
melter any possible mixtures of ore. /,
hat is, II an ore carrying 80 per cent
lead and under could not be sold
'cally and If an ore carrying rs per
ent in lead and over could not be sold
distance, then these two products
ould be mixed to fit the average of
ny one of IL preceding years."
Thus 1t will be seen that diametric-
lily opposed views as to the meaning
the paragraph in question are
aintained. The view dictated by '
JASON, however, is that, as the usual
I'D normal product Of the mine rang
between lead assay Of 80 per cent
n ~ IA n l