Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
H. R. Cooke, for Appellant.
Geo. B. Thatcher and C. L. Richards, for Respondent.
By the Court, Coleman, J.:
Respondent brought suit to recover judgment in the sum of $500 for breach of contract. In 1916 respondent and one Degman obtained an option upon three mining claims situated in the Manhattan mining district, Nye County, Nevada, and thereafter sold said option to appellant. This suit grows out of the contract entered into between appellant and respondent relative to the sale of respondent's half interest. The written contract entered into between the parties is as follows:
This agreement, made in duplicate and entered into this 26th day of May, 1906, by and between C. L. Richards, of the town of Manhattan, county of Nye, State of Nevada, the party of the first part, and S. E. Vermilyea, of the town of Goldfield, county of Esmeralda, state aforesaid, the party of the second part, witnesseth:
That whereas, the said party of the first part is the owner of an undivided one-half (1/2) interest in a certain
escrow deed wherein those certain mines or mining claims known as and called the Reno,' Reno No. 1,' and Reno No. 2' are conveyed by Chas. Nash and Chas. Knox to C. L. Richards and J. T. Degman;
And whereas, the said party of the second part is desirous of purchasing said mining claims and incorporating same for the purpose of taking over, working and developing said claims:
Now, therefore, the said party of the first part for and in consideration of the sum of five hundred ($500) dollars lawful money of the United States to him in hand paid by the said party of the second part, the receipt of which is hereby acknowledged, and the further consideration of the covenants and agreements hereinafter contained and reserved on the part of the said second party, to be kept and performed by said second party, has this day executed a good and sufficient deed of all his interest to the said second party as trustee.
It is covenanted and agreed on the part of the said second party, in consideration of the aforesaid premises, to deliver to said first party, his heirs or assigns, twenty-five thousand (25,000) shares of the capital stock of a corporation to be hereafter organized for the purpose of taking over, operating and developing aforesaid mining claims. Said stock to be delivered to said first party on or before sixty (60) days from the date of this agreement.
This agreement is binding upon the heirs, executors, administrators or assigns of all the parties hereto. In witness whereof, we have hereunto set our hands and seals the day and year first above written.
Witness: _________. S. E. Vermilyea. [Seal.]
It is agreed that the within-mentioned twenty-five thousand shares of stock is subject to pool with all other stock with ...