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

pany VS.. Belden company, supra
Wooster VS.. Carne & Co.. &C Alt 1898
70 N. ]. Eq. 90; Central Brass Co. VS.
Stuber, 220 Fed. go; Swarts VS.. Mar,
rangansett Lighting Co, SO Att. Ill, q
r. |. 4S6; and Rice VS.. Gibbs. 5S n
w. 72i, 80 Neb. AGO and 40 Neb. 264
and find no pertinent analogy of the
facts upon which those cases are baseC
TO those of the present case, except
the last cited. The Wooster case is o
good example of contract provisions
which, as it was there held, do not
render the contract assignable. The
contracts purport to have been made
between Lizzie E. WOOSTER and Crane
& Company, their successors and as
signs, and it was stipulated that "The
above agreements are made with the
understanding that the said Crane &
Company and their representatives and
assigns shall in substantial good faith
keep and perform their agreement
hereinafter contained" Pitney, ad-
visory master, states the pith of the
controversy in single sentence. Il
am" says the master, unable to con-
strue it as a contract on the part of
Miss Wooster to deal with anybody to
whom Crane & Company may assign
their contract and to accept such as
signee as paymaster"
Not so with the agreement Of the
parties here, which is specific that it
shall be binding upon and inure to the
benefit Of the successors and assigns.
In the Nebraska case, it was held on
the first hearing that the contract in
volved was assignable, and the ruling
was not departed from on the rehear-
ing. After setting forth the stipula-
ton which it was claimed rendered
the contract assignable, the court
says: "rhe precise point in the con-
struction of this contract is not
whether it is in it's nature assignable
so that it's conditions being performed,
an assignee might enforce 1t, but whe-
Their or not the plaintiff in this case
as assignee did perform or tender a
performance of those conditions" So
the case was determined upon the
question whether the assignee had
performed, thus in effect conceding
the assignability of the contract.
Smelter Fixes Prices.
The record does not show in the
Belden case what provision was made
in the contract respecting assignment
Another question is presented, aris-
ing from the fact that now, since the
assignment of the agreement, the AM
erican Smelling & Refining company is
constituted an agent for fixing the
price of ores which that company is
itself purchasing. Under the agree
ment, however, it is not fixing the
price arbitrarily, but the price to gov
ern is that which the smelling COM
pany shall make to majority of the
Occur d'Alene shippers. At the time
Of entering into the contract, it is
manifest that the mining company was
satisfied to take what the majority
of the Occur d'Alene shippers could
get for their ores; and, while the
smelling company has now become in
effect party to the contract the min
ing company will still be able to OBJ
tain what it contracted for. In reality
this is another condition that the
mining company contemplated might
eventually happen, and it can hardly
insist now that the agreement is void
because it did happen.
Evidence of "Trust."
Another suggestion is that the
smelling company has brought about
an unlawful combination with other
smelling companies, so that it has a
of the market for the pur-
chase of lead ores, and for that rea-
son, that it ought not to be allowed to
prevail here. While there is sur
mise that such may be the case, the
testimony in the record falls short Of
establishing the fact.
Injunction Granted.
l conclude that preliminary injunc-
ton should issue restraining the min
ing company from disposing of any
of it's lead ores of normal grade to
any other person or corporation than
the plaintiff, and from itself smelling
such ores in it's own behalf, upon the
giving of bond by the plaintiff in
the sum of $4,000. to indemnify the
mining company for any loss it may
sustain if the injunction be wrongful
or without sufficient cause.
l will hear the parties further, If
they desire to be heard, as to the
amount Of the bond.
subsequently the bond was fixed by
the court at $250000).