be specifically enforced,1 if damages would not furnish complete relief for the breach, but a contract for a mere license or privilege to mine, will not, in general, be specifically enforced. Specific performance has been refused, however, of a contract for a way-lease to a colliery, as damages furnished an adequate remedy 4 and a contract for such an easement would not be held to run with the land.5

Spe

§ 621. Enforcement discretionary with court. cific performance is not a matter of right in the parties to a mining contract, but depends upon the sound discretion of the court; is granted or withheld according to the circumstances of the case, and the court must be satisfied that the contract is a fair, just and reasonable agreement, founded upon an adequate consideration, or refuse to enforce its provisions. However, where the contract is in writing, is fair in all its parts, is sufficiently definite and certain and is based upon an adequate consideration, its enforcement is then a matter of right, on the part of the parties thereto, and it ceases to be discretionary with the court to refuse its enforcement."

1 MacSwinney on Mines, p. 197.

2 Ante, idem.

3 Geiger v. Green, 13 M. M. R. 324.

4 Anon v. White, 3 Swanst. 108; Ricketts v. Bell, 1 Dr. & Sm. 335.

5 Keppell v. Bailey, 2 M. & K. 534.

6 Geiger v. Green, 13 M. M. R. 334.

7 North Georgia Co. v. Latimer, 12 M. M. R. 367. A mere contract to sell an "interest in a mine" is so indefinite it cannot be enforced. Berry v. Woodburn (Cal.), 40 Pac. Rep. 802. Myers v. Metzger (N. J. Ch. 1902), 52 Atl. Rep. 274. Any provision of a contract which renders it unjust to enforce it, will justify a refusal to decree its performance. Fed. Oil Co. v. West. Oil Co., 112 Fed. Rep. 373. Specific performance will not be decreed as against cotenants who contract for themselves only on condition that other tenants shall also convey, where the latter refuse. Hector-Johnson Co. v. Billings (Neb. 1902), 91 N. W. Rep. 183.

§ 622. Time of the essence of such contracts. - On account of the fluctuating value of mining property, caused not only by the rise and fall in the price of ore, but the discoveries or failures of the ore bodies as well, it is incumbent on the parties to all mining contracts, who seek enforcement of same, to proceed promptly in the assertion of their rights.1 Although no time may have been agreed upon for the performance of the contract, time is generally regarded as of the essence of the agreement, and after the expiration of a reasonable time, performance would be refused.2 Just what would be held a sufficient time to excuse the performance of the agreement, would necessarily differ in each case, according to the change in the character of the property or the loss or inconvenience suffered by the promisor, as a result of the delay. Three months has been held a sufficient time to enforce the execution of a contract for a lease; the vendor is always entitled to a reasonable time to make a good title, but where the vendee is in possession, time would not be essential to the performance of the contract, notwithstanding new and additional values, resulting from new discoveries of ore; 5 and

3

1 MacSwinney on Mines, p. 194.

2 McBride v. Weeks, 22 Beav. 533; Green v. Levin, 13 Ch. D. 594. "A., on the fourth of October, contracted to grant a mining lease to B., and no time was mentioned for completion. On the tenth of December, B. gave notice to A. that unless he completed the contract within a month he would rescind the contract: Held, on A.'s default that B. was justified in giving the notice, that the time was reasonable, and a bill by A. for specific performance was dismissed with costs, although there were matters essential for the completion which did not depend on A., but on third parties." Macbryde v. Weekes, 22 Beav. 533; M. M. D. 333.

8 McBride v. Weeks, supra; s. c. 13 Mor. Min. Rep. 346. 4 Marsh v. Holly, 14 M. M. R. 648.

* Falls v. Carpenter, 6 M. M. R. 397. Where an option to sell is extended, on the condition that the purchaser is to satisfy the vendor, before a given date, of his ability to purchase, specific performance will

what would be a reasonable time, where the facts were not disputed, would be a question of law for the court,1 but otherwise a question of fact for the jury.2

§ 623. Fraud will excuse performance. Fraud will excuse the performance of a contract for the sale of mining property and enable the defrauded party to set aside the contract. This rule applies particularly to all persons occupying fiduciary relations, who acquire an advantage by concealment of the true status of the property. Accordingly, a contract under which one partner obtains an

not be decreed unless there is proof of a compliance with the condition, upon which it was extended. Washington v. Rosarie Mining &c. Co. (Tex. 1902), 67 S. W. Rep. 459. Where time is not of the essence of the contract and an objection as to title is remedied within a reasonable time, the vendor is entitled to specific performance. Arnett v. Smith, 88 N. W. Rep. 1037.

1 Lockhart v. Ogden, 2 M. M. R. 602; Morgan v. McKee, 3 M. M. R. 129; Leaning v. Wise, 7 M. M. R. 41.

2 Shepler v. Scott, 2 M. M. R. 674. "Where an interest in a mine was conveyed by deed accompanied by a contract that the purchaser might at any time within six months abandon the purchase upon making a reconveyance, but in case the contract was not so abandoned the purchaser should pay $3,000: Held, that plaintiff's case was complete upon showing the contract and the lapse of time without proof of demand; 2. That if defendants claimed an extension of time, they must show the granting of such extension affirmatively; 3. That such extension being proved generally, the law would construe it to be for a reasonable time, and that what was a reasonable time was a question of law for the court." Lockhart v. Ogden, 30 Cal. 547; M. M. D. 376. "An indenture to secure the purchase money of mines in installments provided for the payment of £768 on every twenty-fourth day of December, until, etc.; if not paid within one calendar month, to carry interest: Proviso, that no suit should be brought within that month: Held, that the proviso controlled the covenant; that it was not a naked promise to forbear, and that a plea that suit was brought within one calendar month was good. Foley v. Fletcher, 3 H. & N. 769; M. M. D. 376.

3 Phosphate Co. v. Hartmont, 5 Ch. D. 394; Erlanger v. Sombrero Co., 3 App. Cas. 1218.

advantage, by reason of a failure to make disclosures, will not be enforced; 1 misrepresentation will defeat performance,2 and so will an advantage obtained by secret mining,3 or discoveries made by others than the parties to the contract. But general statements as to the capabilities of a mine, will not enable the purchaser to avoid the contract; 5 the purchaser must not have the same means of information as the seller, but must be actually misled to his disadvantage; and if he has the same means of information as the vendor, or as full an opportunity to discover the true status of the property, he cannot avoid the contract, notwithstanding exaggerations by the vendor.

6

§ 624. When mistake a defense. A contract will not be enforced that is founded upon a mutual mistake of the parties. A mistake in description, whereby eighty acres

1 Perens v. Johnson, 3 Sm. & G. 419.

2 Fisher v. Worrall, 14 M. M. R. 624.

3 Phillipps v. Homfray, 14 M. M. R. 677.

4 Coke v. Dixon, 13 M. M. R. 357.

5 Jennings v. Broughton, 17 Beav. 234. "The owners of a colliery entered into a contract with an adjoining landowner for the purchase of his estate without disclosing the fact of which he was ignorant, that they had without authority gotten a considerable quantity of coal from under it: Held, that the court would not enforce the contract at the suit of the purchasers, though the sale was not shown to be at an undervalue." Fothergill v. Phillips, L. R. 6 Ch. 770; M. M. D. 334.

6 Atwood v. Small, 6 Cl. & F. 232; Small v. Atwood, 3 Y. & C. Ex. Eq. 105; Abernian Iron Works v. Wickens, 4 Ch. 101.

'Higgins v. Samuels, 2 J. & H. 460; Haywood v. Cope, 25 Beav. 140; Jennings v. Broughton, 17 Beav. 234. "The plaintiff had worked the coal under his estate but abandoned it as unprofitable. Twenty years afterwards the defendant cleared the pit and examined the coal in the shaft with other persons, and subsequently contracted for a lease. The colliery turned out to be worthless: Held, that the defendant could not resist a specific performance, on the ground of the plaintiff not having communicated the fact of his having worked the mine and found it unprofitable." Haywood v. Cope, 25 Beav. 140; M. M. D. 334.

8 MacSwinney on Mines, p. 200.

is described, instead of eight,1 a mutual mistake as to the existence of a coal vein,2 or the location of an oil well upon the land demised, or any other assumption of the parties, as to a material fact, regarding which it afterwards appears they were mutually mistaken, will authorize the court to refuse performance of the contract. But to excuse per

A mistake arising

formance the mistake must be mutual. from the negligence of one of the parties to the contract is not available; nor will mere ignorance of the facts excuse performance,' for mines are notoriously liable to faults and

1 Davis v. Shepherd, 1 Ch. 410.

2 Harlan v. Lehigh Co., 8 M. M. R. 497.

3 Mays v. Dwight, 10 M. M. R. 453.

4 Muhlenberg v. Henning, 15 M. M. R. 473.

5 Brainard v. Arnold, 8 M. M. R. 478. "A half interest in common in a lot descended to A., who supposed, under a mistake as to the law of descent, which was also shared by B., that the lot descended in severalty to the latter, who inherited no interest therein. Each of the parties owned adjoining lands, and thereafter they executed a joint mineral lease to several descending tracts owned by them in severalty, which included the lot in question. The lease was executed as a joint lease merely for convenience, and all the parties, including the lessee, supposed that A. had no interest in the lot in question, though they all knew the facts: Held, that the lease did not convey the interest of A. in such lot, since it was executed under a mutual mistake as to the ownership thereof." Harlan v. Cent. Phos. Co. (Tenn. 1901), 62 S. W. Rep. 614.

6 Grymes v. Landers, 10 M. M. R. 445.

7 Haywood v. Cope, 25 Beav. 140. "Where land was conveyed reserving ore, but it was asserted that the parties had agreed on a reservation of the ore for certain furnaces only, and that it had been otherwise written by mistake: Held, that a court of equity could relieve such mistake and reform the deed; but the fact not being admitted, an issue of fact was, in the discretion of the court, submitted to the jury." Hudson Iron Co. v. Stockbridge Iron Co.; Stockbridge Co. v. Hudson Co., 102 Mass. 45; s. c. 107 Mass. 290. But such mistakes must be proved beyond a reasonable doubt. S. c. 107 Mass. 290; M. M. D. 239. "A person contracting for the lease of a mine cannot resist its performance on the ground of his ignorance of mining matters and of the mine turning out worthless." Haywood v. Cope, 25 Beav. 140; M. M. D.

334.

"Where parties had acted upon a certain decree which was in fact