The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1918-02-07
Full Text of Judge
Wolverton Decision
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CONTINUED from page -
mining company in this respect. Tn
production of ores is, of course, a re
suit of the active operation of tn
mines, and these ores the mining com
pany is required to sell and deliver t,
the smelling company. The relic
asked is that the mining company, il
pursuance Of it's undertaking, continu,
their delivery to the plaintiff. Their,
are no delicate or complex conditions
involved in their production or deliv.
cry, or in obtaining the stipulated
price agreed upon to be paid for them;
nothing apparent that will necessitatt
supervisory control in requiring per-
Torrance on the part of the mining
company. There is a provision re-
specting the assay upon which the
price is to be fixed, which looks to
the possible submission of the assay
to an umpire for adjustment where the
assayers for the two companies do not
agree. So far as the record shows up
to this date and for more than IL
years, there has been no necessity for
submission to the umpire But this
aside, the umpires are specifically
named, and if it should turn out that
the parties do not agree, the submis-
sion automatically takes place and the
matter is adjusted 1t requires no
supervision Of the court, therefore, for
ascertaining and fixing the price
which the mining company is to re-
ceive for it's ores. There is stipula-
ton in the supplemental agreement of
May 4, 1905, providing for filing va
cancies in the list of persons designat-
ed to act as umpires in case any one
of the list should be rejected by either
of the parties, but this does not mater
tally affect the situation.
Option Of Smelling Company.
1t is urged that even as to these
ores Of normal grade, there is accord
ed under certain contingency an OPP
ton to the smelling company to pur-
chase them. This is based upon the
second paragraph of the supplemental
agreement Of May 4, 1905. The true
meaning and purpose of the para
graph is not at all clear. 1t seems in
congruous and out of harmony with
the other stipulations of both the or
iginal and the supplemental agree
ments. 1t should, however, under one
of the canons of construction, be con-
sidered in connection with the other
stipulations, respecting the same sub
ject matter, and contained in both the
original and supplemental agreements.
The third paragraph of the supple
mental agreement provides that the
terms that are to govern transposing
the statement for clarity) shall be
those made by the smelling company
to majority of the Occur d'Alene
shippers unless the smelling company
shall go out of existence or shall cea~~
to purchase a majority of the Occur
d'Alene ores. This is a specific and
positive stipulation, and comes later
in the agreement than the provisions
of. paragraph 2. 1t is then later pro-
vided, in the third paragraph that in
case the smelling company shall cease
to exist or shall cease to purchase a
majority of the tonnage of ore pro-
duced in the Occur dAlenes then the
terms given by the other smelling
nf he
produced in the Occur d'Alenes, after
excluding certain ores specified, shall
govern. This latter stipulation would
seem also to be specific and positive.
Yet in order to give it effect, para
graph 2 must be read in connection
with this latter condition. So that If
the smelling companies purchasing
majority of the Occur d'Alene ores fix
terms that the smelling company does
not desire to meet, then the mining
company may accept those terms, and
ship it's ores accordingly. But If the
smelling company desires subsequent
ly to meet the terms, it may do so by
giving notice, etc. This is the option
alluded to, and such is the construc-
ton that seems the more reasonable.
It Is the one that the parties have ap-
parently acted upon and have con-
sidered to be binding in the execution
of the agreement. But If I am mis-
taken as to this, the question present.
ed is both weighty and difficult, and
one which may well be deferred un-
til the final hearing. If l am right in
this construction, the exercise of the
option is contingent upon conditions
that have never-as yet come about and
may never arise. The contingency of
the conditions arising under which the
so-called option may be invoked is so
remote that it places no material OBJ
stacles in the way Of enforcing speci-
fic performance in equity. Guffey "
Smith, 237 U. s. 101.
AS it respects the high and low
grades, the agreement as interpreted,
and as acted upon by the parties, in
wolves an option on the part of the
smelling company to take them But
there seems to be no good reason why
the mining company may not be re-
quired to deliver the ores when the
option has been declared. l need not