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Show Page 4 THE DAILY RECORD Monday, October 6, 1958 Extracts from Recent Decisions of the Supreme Court of the State of Utah IN THE SUPREME COURT OF THE STATE OF UTAH W. P. Rogers and Magna Mining Co., a New Mexico Corporation, Plaintiffs and Respondents, v. United Western Minerals Co., a Delaware Corporation, Defendant and Respondent No. 8787 I WADE, Justice: This is an appeal from a judgment granted W. P. Rogers and Magna Mining Co., plaintiffs below and respondents herein, against the United Western Minerals Co., appellant herein, for past due installments on a contract for sale of mining claims. The respondents as sellers and appellant as buyer entered into a contract the portions of which are pertinent in this suit read as follows: 2. The consideration for the sale and purchase of said Coleman Canyon group of mining claims is the sum of One HunThousand Dollars dred Fifty-fiv- e be paid as folto ($155,000.00), lows: (c) The balance of $125,000.00 shall be paid in the following Judgments District Court 112818 Cata and Mary J Sells and John A & Violet Chambers v Richard H .Downum, A R Rogers, Robert W Hughes, Douglas J Davis, G L Shumway, and Moab Broadcasting and TV Corp; Moab Broadcasting & TV Corp, 3rd party pltff v Richard H Downum, 3rd party deft; $2,410 to 3rd party pltff, Moab Broadcasting & TV Corp against 3rd party deft, Richard H Downum; that 3rd party pltff be granted a lien on the 7,500 nonvoting stock of 3rd party deft for which stock certi- -' ficates have not been issued for the payment of the said sum of $2,410; lien foreclosure and sale of stock 107500 Isabel F Iiams v Lloyd B Iiams; deft is restrained from going on premises at 2305 Lynwood Dr, or any other premises where pltff and children may be residing 115810 Dr L J Bingham v Mr & Mrs Harold Clegg; $298.85 to pltff 117981 Kenneth Baird v Ruthford & Nine Tanner; $80 to pltff Kemp v John A Chambers; Moab Broadcasting Co, garnishee; $1,202.33 to pltff 112979 Clair 117667 H R Sanford v Orson D Spencer; $1,289.10 to pltff 117201 United Food Service v Eugene E & Kathleen Nelson; U S Steel Corp, garnishee; $78.59 to pltff 116847 Deseret Federal Sav A Ln Assn v Monroe M & Flora L Iversen and Utah State Tax Comm; $4,397.65 to pltff; mtge foreclosure and sale of ppty Darwin Quigley v International Oil & Metals Corp; Union Bk & Tr Co, garnishee; $1,119.90 to pltff 115594 Henry C Nelson & Co v Lynn O Whitlock; $110.97 to pltff 29-42- 8 of the gross minvided, however, that buyer at its for out of 15 ways at the option of the Buyer. At the option of Buyer, to be option, may pay $500.00 per eral productions from the claims exercised upon acceptance of title month after six months from the and the provisions of paragraph 3 to this group of claims, buyer date of this agreement in lieu that appellant has the obligation of said to $62,500.00 may pay up of working and mining said of continuously mining and operamount in stock of Buyers corclaims, so that buyer shall have ating the claims as long as ore or poration at a value of $1.00 per the obligation of either contin- minerals can be produced therefrom share, or any portion less than uously mining and operating said in commercial quantities or else $62,500.00 in such stock. The balclaims so long as ore or minerals pay $500.00 per month in lieu of ance of the $125,00.00 purchase can be produced therefrom in production for each month it does price not so paid for in stock commercial quantities, or if it not mine and operate under such shall be paid for out of 15 fails to do so, shall pay sellers conditions, the $500.00 per month of the gross mineral production the sum of $500.00 each and to be applied on the purchase priced from said group of claims . . . every month in lieu of produc- This they contend can only mean 3. As to the payment of the tion. The sum of $500.00 ner that payments on the balance due purchase price out of production, month so paid sail be credited are to be made out of ores proof this payment shall be 15 uoon the unpaid balance of the duced from the claims and at the the gross mill receipts of all option of appellant at the rate of purchase price. minerals and metals mined and $500.00 in lieu of such production produced from such claims, but 10. In the event the buyer fails if it were possible to produce in there shall be no actual payment to make the payments for the commercial quantities and appellant due to sellers by buyer for six bala'we of the purchase price did not desire .to do so. months after the date of this on the Coleman Canvon grouo Respondents answer and appelagreement; however, the obligaof claims out of the production lant agrees that a contract must be tion shall accrue during said pefrom said claims or fails to op- read in its entirety to obtain the riod as to any minerals produced erate and mine said groun and intent of the parties thereto (1). Reand marketed even though paydoes not nay the $500.00. per spondents call attention to the fact ment Is delayed until six months month on the purchase price as that the parties entered into a confrom the date of this agreement hereinabove provided, tlien and tract of sale whereby tl)e sellers Thereafter, payment shall be in anv of such events, the sellers agreed to sell and the buyer agreed made monthly and buyer shall at their option may retake title to buy the mining claims for a cerkeep accurate books and records to all of the Coleman Canyon tain specified sum, namely $155,-000.0and render an accounting montheroun of claims, in which event $30,000.00 of which was ly to the sellers with the remitbuver shall have no further paid in the manner agreed before the tance of the 15 of the gross or other obligation relative there- conveyance. They point out that if receipts from said claims; pro- to. or at sellers onttan. mav our-su- e appellants argument were valid it any other leeal remedv which would be within its power to thev mav have against the Buver. change the aereed purchase price It is understood and agreed that to a sum different from that exthe pavment out of production on pressly specified in the contract and the Coleman Canyon group of that such an interpretation would 1613 claims shall be a lien running be unreasonable and that the pro800 Anderson Lumber Co to Verl with the title to said claims until visions of paragraphs 2 and 3 relatF McMillen, Jr; $479; 350 Mt the full purchase price Is paid, ing to payment out of production 3 No Hills and that anv assignee or trans- refer merely to the rate of payOlympus 801 Construction Specialties Co to feree of said claims shall speci- ments in the event there is proKeith E Chase et al; $235; 350 fically take subject to the obliga- duction. or if appellant cannot or Mt Olympus No 3 tion of the pavment out of pro- will not produce it must pay at 802 Allen Steel Co to Verl F Mcduction therefrom as provided in least $500.00 per month until the 350 Mt this agreement $109; OlymMillen, Jr; full amount of the purchase price Hills Sub pus been paid. Such an interprehas No payments were made on the 803 Clarence Chytraus to Whom tation, respondents claim, would $125,000.00 balance of the it May Concern; $1,007; no rice bv the buver and thepurchase sellers give effect to all the terms of the ppty listed contract and is the only reasonable breaches this suit alleging 830 Utah State Tax Comm to Est brought coninterpretation thereof. of the contract for failing to of Floyd W True; none; 5 114 tinuously operate and develop the Each party contends that the proA claims and for failure to visions of the contract are not ammining 876 Home Benefit Sav & Ln to make payments of at least $500.00 and that the only reasonHenry C Duehlmeier; $14,350; per month after they became due biguous able interpretation of all its terms 314 Meadow Hts No 3 under the contract and further is in accordance with such partys pleaded the provision whereby the construction. A careful consideratitle to the property could be re- tion of all of the terms of the contaken by the sellers upon breach tract shows it to be ambiguous and of the contract by the buyer. They its express terms are irreconcilable: 1613 asked the court to rrant them a The contract provides for the pay684 J Deed Gardner to U S Treas judgment for $500.00 per month ment of a definite, specified Dept; $7,441; 804 Pine .Ave, commencing with the month of amount, not conditioned upon any Long Beach, Calif April, 1956. plus interest and for contingnency, yet the method of 819 Vernon B Smith to U S Treas a reconveyance of the mining payments makes no provision for D S 4805 4736 $506; Dept; claims. the time or manner of payment 828 Blair k Hamilton to Ernest W reof action minerals cannot be produced where this At the pre-triBricker et al; $3,926; 25 2S 1W make therefrom in commercial quantities. were required to 829 General Blars Supply to Whom spondents remedies. They de- We conclude that there is an aman election of it May Concern; $1,253; 18 2 cided to seek judgment for the bal- biguity in the contract which can Ensign Downs A ance of the purchase price at the only be explained by evidence 874 Catherine Myers et al to S L rate of $500.00 per month rather dehors the contract. However, it Co Welafre Dept; none; 107 than reconveyance of the mining should 'be noted here that the Morningside Hts burden of proving that ores or minclaims. 875 Florence Prouse to S L Co in commercial quantities Appelant contends that under the erals Welfare Dept; none; 32 3S 2W not be produced from the could express terms of the contract should that question be mapleaded in this action it did not claims, is upon appellant as an af become obligated to make any pay- terial, ment on the balance of the purchase price unless ore in commercial quantities could be produced 1613 and that an allegation to this effect 358 SLC to Bd of Ed Granite Schl was a necessary condition preceDist; $10; 52 Pleasant View Pk dent to a cause for action. It fur804 James R Shane to Junior Boun-outher contends that since respond5 $10; 3S 3E ents complaint did not contain such 817 Utah Sand & Gravel Prod Corp an allegation the court erred in to Leggett Bros Sand & Gravel failing to sustain appellant's genCo; $10; 21 2S IE eral demurrer to the complaint and 818 Utah Sand & Gravel Prod Corp in removing as an issue from the to Leggett Bros Sand & Gravel case whether ores in commercial Co; $10; 28 2S IE quantities could be produced and 825 Frank Yanchar to Sun Tide that payment of any kind on the Big balance of the purchase price was Corp; $10; Cottonwood Mining Dist etc dependent upon the ability to pro837 Wm C Bolander to Thayne B duce. In support of this argument apTenney; $10; 5 2S IE l; 855 Wanda J Glick to Gayle J pellant calls attention to the provision of paragraph 2, subparagraph $10; 2 1 Rockwood Sub 892 Martin L Ethington, as Adm c, that the balance of the purchase to Utah Power & Light Co; $1; price of $125,000.00 not paid for 13 16 Mountain View Add by appelant's stock is to be paid . 0, firmative defense since it has been in possession of the claims since the execution of the contract and the facts on this subject are peculiarly within its knowledge. Appellant further contends that respondents had elected in their complaint to retake title to the claims as provided in the contract and therefore could not at the pretrial elect to take another remedy. There is no merit to this contention. Respondents in their complaint asked for two remedies, i.e. for payment due under their interpretation of the contract and for reconveyance. Paragraph 10 of .the contract gave them the right in the event of a breach to pursue any legal remedy they might have or to take a reconveyance. Rule 8(e) U.R.C.P. allows the pleading of inconsistent remedies. Although under the contract respondents were not entitled to both the remedies they sought, they did not by seeking both remedies in their com-- , plaint make the election pprovided for in the contract The election of remedies was not made until respondents were required to do so upon demand of appellant at the pre-tria- l. Reversed with instruction to proceed in accordance with this opinion. Both parties to bear their own costs. Release of Liens Leins al Quit Claim Deeds s; Labor-Democr- at Me-Fal- WE CONCUR: Roger I. McDonough, Chief Justice J. .Allan Crockett Justice Geo. W. Worthenn, Justice F. Henri Henriod, Justice 1. Gates v. Daines, 3 Utah 2d 95, 279 P.2d 458. BE A BLOOD ! DONOR I (W For reliable tips on legal affairs, consult the |