Hall v. Chitwood

ELLISON, J. The present action was instituted on defendant’s written agreement to indemnify one E. [571] J. Winslow for the expense of sinking a mining shaft in a mineral district in Jasper county if the drill hole theretofore put down was not as represented. Winslow assigned the right to sink the shaft and the indemnity to plaintiffs. They sunk the shaft and, contending that the representations were not true, brought the present action and recovered judgment in the circuit court. It seems that in that mining district prospect holes are drilled into the earth seeking the discovery of lead or zinc, or both, and a record kept of the showing made by the drill. By this means it is ascertained, with more or less probability, the prospect for finding ore in paying quantities by sinking a shaft. The following is the writing referred to above: “For the sum of one dollar, receipt of which is hereby acknowledged, we hereby agree to indemnify you all expenses of sinking a shaft, if, after you have sunk upon any of these holes or have drifted to them, they are not found to he as good as'we represent them. “We present the following as a faithful and trustworthy log of the holes they respectively represent. .... Drill hole No. 3, one to eight feet soil and clay .... 110 to 117 feet dark flint with extra good ore. ?? It is first contended by defendant that the agreement was for the service of Winslow and that it was of such a nature it could not be assigned to plaintiffs. The following authority is cited by defendant to sustain his position. Butts v. McMurry, 74 Mo. App. 526; Lansden v. McCarthy, 45 Mo. 106; Boykin v. Campbell, 9 Mo. App. 495; McQueen v. Choteau, 20 Mo. 222; Arkansas Smelting Co. v. Belden Mining Co., 127 U. S. 379. The last citation is a mining case, and while not like the case before us it contains an instructive statement of the law on the question of assignments. The plaintiff on the contrary cites us to the following as maintaining the right of assignment: Leahy v. Dugdale, 27 Mo. 437; State ex rel. Sullivan v. Clemens, [572] 42 Mo. 69; Love v. Van Every, 18 Mo. App. 196; Sunday Mirror Co. v. Galvin, 55 Mo. App. 412; Paving Co. v. Prather’s Admr., 58 Mo. App. 487; Devlin v. Mayor. 63 N. Y. 8; Mnnsell v. Lewis, 2 Den. N. Y. 224; Gaston v. Plummer, 14 Conn. 343; Galey v. Mellon, 172 Pa. St. 443; Seers v. Conover, 33 How. Prac. 324; Parsons v. B. & L. Assn., 44 West Va. 335. We are relieved of the necessity of passing on the question from the fact that in this ease it is shown that defendant knew of and assented to the assignment. It therefore became his valid obligation in the hands of the assignees, even though it would not have been without such consent. It is next objected that the words in the agreement, “extra good ore,” only referred to the quality of the ore and had no reference to its quantity. The court rejected that idea and we think properly. It will be noticed that the guaranty was that the first eight feet were soil and clay and that the space between 110 and 117 feet was “dark flint with extra good ore.” In that space there was found, on investigation, that the drill had gone through a small “pocket” of ore of no consequence as compared with the full seven feet. Prom the fact that there was found this small quantity, defendant contends it met the meaning of his contract. We think such not a fair or reasonable interpretation of the words in question. It was not intended that a small particle of extra good ore, in the space named, would discharge the obligation. Manifestly, it was intended to represent that the drill showed extra good ore in quantity. Words of two meanings, or which may be used in more than one sense, become perfectly plain when the connection in which they are used and the situation of the parties, with the object they had in view, are understood. The drill hole had been made with á view of ascertaining, as near as may be, what the prospect was for ore. If it was good, then parties could be found who would go to the large expense of sinking a shaft near [573] the hole. A good prospect for ore means something more than that some good ore may he found; it must be a prospect in such quantity as will pay to mine. Of what consequence or benefit could it be to the miner if a small particle of extra good ore could be found, if it was not in quantity to justify mining? When the plaintiffs had put the shaft down to 117 feet, they ran a drift over to the drill hole and thus discovered that it did not fill the obligation which defendant assumed in the contract. The expense of the drift was not included in plaintiffs’ claim, as the court’s instruction directed the jury, in case the finding was for plaintiffs, to allow for sinking the shaft. But there is a point made against plaintiffs’ instructions which discloses substantial error, especially emphasized in the last one, reading as follows: “The court instructs the jury that the term ‘extra good ore,’ as used in the contract sued on, means that for the depth of seven feet and beginning at a point one hundred and ten feet from the surface and continuing to the depth of one hundred and seventeen feet, that a. drift driven out to said drill hole would show that the drill for said depth passed through the deposit of extra good ore and that there was seven feet of the same.” Therein the jury is told that the drill must have passed through a seven foot deposit of extra good ore in order to fulfill the contract. Whereas, the contract was that there was seven feet of dark flint with extra good ore. It is apparent that the instruction put defendant at great disadvantage and that it left ample room to do him much harm. The instructions for defendant, though they embraced the language used in the contract, did not refer to, nor explain those for plaintiff, and the least that can be said is, that the inevitable tendency was to confuse. The trial court -at the defendant’s request very properly directed the jury that the agreement only referred to the drill hole; and that if the drill passed [574] through extra good ore, beginning at a distance of 110 feet below the surface and continuing to 117 feet below, it fulfilled the contract, notwithstanding such condition did not show or exist in the shaft. The judgment is reversed and the cause remanded. All concur.