Suit for specific performance dismissed by the courts below for
failure of the vendors to comply with the terms of the agreement
and judgment affirmed by this Court.
The court below properly held appellant to an agreement made in
open court as consideration for a continuance that no judgment that
might meanwhile be obtained in another state on the same cause of
action should be pleaded.
1 Ariz. 217 affirmed.
Page 227 U. S. 195
The facts are stated in the opinion.
Page 227 U. S. 198
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit by the appellant for the specific performance of
a contract made between it and C. C. Miller, A. V. Miller, now
deceased, and G. B. Lasbury, hereafter called the vendors, for the
sale by the latter parties, on certain conditions and terms, of
175,000 shares of stock in the appellant, or, in the alternative,
of all their interest in the West Brooklyn and certain other mining
claims. The bill alleges the failure of the condition referred to,
and seeks a conveyance of the interest in the mining claims and an
account. It was dismissed by the court below, and the plaintiff
appealed.
The facts found, abridged, are these. The vendors owned the
mining claims and had given an option to purchase the West Brooklyn
claim and another, not concerned here, to the United Verde Copper
Company, which was extended and kept in force up to January 1,
1908. In 1906, a stockholder in the appellant had begun a suit on
behalf of himself and others, afterwards amended so as to make the
appellant plaintiff, to have the Millers and Lasbury, also
stockholders, declared trustees for the appellant of the mining
claim now in question. Miller, on the other hand, had sued the
appellants for work done upon the Brooklyn claim. By way of
compromise, the present contract was made. It recited the two suits
and the conditional sale of the West Brooklyn claim to the United
Verde Copper Company, and provided, in consideration of the
dismissal and settlement of the foregoing
Page 227 U. S. 199
causes of action, that, if the sale to the United Verde Company
was consummated by January 1, 1908, the above-mentioned transfer of
stock should be made, etc., but that, if, for any reason, the sale
should not be consummated, then the conveyance now sought for
should take place.
*
Page 227 U. S. 200
The suit by Miller was dismissed, and a dismissal of the
company's action was requested, but it was declined. Then, on
January 2, 1908, the vendors, alleging consummation of the contract
with the United Verde Company, tendered performance, which was
declined on the ground
Page 227 U. S. 201
that it did not comply with the terms of the present agreement,
and there was a second refusal to dismiss the company's suit. On
February 15, however, it did dismiss that suit, and ten minutes
later began the present one. This was tried in March, 1909, and the
court found that the sale to the United Verde Company had not been
consummated, and that the failure was caused by the refusal of the
plaintiff to dismiss its former above-mentioned suit, which, it
will be remembered, impeached the title of the vendors. (The
vendors were not estopped by earlier having alleged consummation.)
The court, however, instead of dismissing the bill outright, made
an alternative decree that it be dismissed if the plaintiff did not
assent within thirty days to certain terms looking to a carrying
out of the sale to the United Verde Company. The plaintiff refused
its assent, and the supreme court, accepting the finding of the
court below, affirmed the dismissal of the bill. This disposes of
the case except in one particular to be mentioned.
Harrison v.
Perea, 168 U. S. 311,
168 U. S.
323.
On January 28, 1908, the appellant brought a suit in Nebraska
for specific performance of the same agreement now sued upon here,
and on February 8, 1909, it was decided that the vendors must
convey their interest in the West Brooklyn claim, as against Ada M.
Miller, grantee of A. V. Miller, and Lasbury, the only parties
served, and a master appointed by the court executed a conveyance
accordingly. The appellant sought to avail itself of this decree
and conveyance. But, on December 23, 1908, it was agreed in open
court, in consideration of the defendants' allowing a continuance
of the present Arizona cause, that no judgment that might be
obtained in Nebraska should be pleaded. The court properly held the
appellant to its agreement. There was a cross-complaint by the
appellees in the answer to which the decree and conveyance were
pleaded, but the supreme court, after referring
Page 227 U. S. 202
to
Fall v. Eastin, 215 U. S. 1,
disposed of the matter by noticing that no relief was given on the
cross-complaint, and that specific performance was denied on other
grounds.
Judgment affirmed.
* The contract in full is as follows:
"Whereas, an action is now pending in the District Court of
Yavapai County, Arizona, entitled
Brooklyn Mining & Milling
Company et al. v. Charles C. Miller, Alonzo V. Miller, and George
B. Lasbury, which action relates to the title of the West
Brooklyn, East Brooklyn, and South Brooklyn mining claims located
in said county and territory, and relates to an accounting for ores
and minerals taken therefrom; and"
"Whereas, the said Charles C. Miller, Alonzo V. Miller, and
George B. Lasbury have made a conditional sale of the above-named
West Brooklyn mining claim for the sum of $10,000 to the United
Verde Copper Company; and"
"Whereas, an action is pending in the district court of Yavapai
County, Arizona, entitled
Charles C. Miller v. Brooklyn Mining
& Milling Company, for several thousand dollars claimed to
be due and owing to the said Charles C. Miller for services
performed by him and Alonzo V. Miller for the said Brooklyn Mining
& Milling Company; and"
"Whereas, it is the desire of the parties connected with the
foregoing causes of action to settle the same, and to adjust the
matters of difference between the parties in connection
therewith;"
"Therefore, in consideration of the dismissal and settlement of
the foregoing causes of action, it is hereby stipulated and agreed
by and between the Brooklyn Mining & Milling Company and
Charles C. Miller, Alonzo V. Miller, and George B. Lasbury that, if
the sale of the West Brooklyn mining claim to the United Verde
Copper Company is consummated on or before the first day of
January, 1908, the said Charles C. Miller, Alonzo V. Miller, and
George B. Lasbury are to transfer and deliver to the said Brooklyn
Mining & Milling Company one hundred and seventy-five thousand
shares (175,000) of stock in said Brooklyn Mining & Milling
Company, free and clear of all liens and encumbrances whatsoever,
it being understood that said transfer of stock is to include all
of the holdings of said Charles C. Miller, Alonzo V. Miller, and
George B. Lasbury in the Brooklyn Mining & Milling Company, and
the said parties are to receive therefor the sum of 3 (three) cents
per share for said stock, and in addition thereto Charles C.
Miller, Alonzo V. Miller, and George B. Lasbury are to pay to the
Brooklyn Mining & Milling Company the sum of eight thousand,
five hundred dollars ($8,500) out of the proceeds derived from the
sale of the said West Brooklyn mining claim; in addition thereto
the said Charles C. Miller, Alonzo V. Miller, and George B. Lasbury
are to convey all of their right, title, and interest in and to the
East Brooklyn, South Brooklyn, North Brooklyn, Empress, and Midway
mining claims, and said transfer shall contain the warranty that
the assessment work has been done for the year 1907 upon the
Empress, Midway, and North Brooklyn, and the said Brooklyn Mining
& Milling Company shall pay the said assessment work at its
reasonable value. The said Charles C. Miller, Alonzo V. Miller, and
George B. Lasbury agree to do the assessment work for the year
1907, on the East and South Brooklyn mining claims, and said
assessment work so to be performed is to be paid for by the
Brooklyn Mining & Milling Company at its reasonable value. It
is further stipulated and agreed by and between the parties hereto
that if for any reason the sale of the West Brooklyn claim to the
United Verde Copper Company by the said Charles C. Miller, Alonzo
V. Miller, and George B. Lasbury shall not be consummated on or
before the first day of January, 1908, then the said Charles C.
Miller, Alonzo V. Miller, and George B. Lasbury are to convey to
the Brooklyn Mining & Milling Company all of their right,
title, and interest in and to the West Brooklyn, East Brooklyn,
South Brooklyn, North Brooklyn, Empress, and Midway mining claims,
and the assessment work on the North Brooklyn, Empress, and Midway
claims for the year 1907 is to be paid by the said Brooklyn Mining
Company at its fair and reasonable value."
"It is understood by and between the parties hereto that the
foregoing does not concede or admit any of the allegations
contained in the pleadings of said causes of action, but the
agreement is entered into for the purpose of adjusting the matters
of difference between said parties, and avoiding further costs and
expenses to the parties hereto."
"In witness whereof, we have hereunto set our hands this 27th
day of August, A.D.1907."
"C.C. Miller"
"A. V. Miller"
"G. B. Lasbury"
"Brooklyn Mining & Milling Company"
"By Chas. W. Pearsall,
President"