Powers v. World's Fair Mining Co.

Citations

• 10 Ariz. 5
• 86 P. 15
• 1906 Ariz. LEXIS 84

Syllabus

<p>1. Mines and Mining — Contracts—Sale—Construction.—A contract for the sale of certain mines granting therein the privilege of development, and the removal and reduction of ores therefrom pending the consummation of the sale, upon the stipulation that all proceeds from such ores, after certain deductions, should be paid to the owners to apply on the purchase price, which further provides that all,ore taken out shall be milled and concentrated or leached on the grounds with an allowance to purchaser of twelve dollars a ton on all ore so worked, with a further proviso that on all ores better adapted to be shipped directly to a smelter, and upon all concentrates a further allowance to the extent of the shipping and smelting charges, is ambiguous as to the latter proviso, which, unaided by extrinsic evidence, does not support the interpretation permitting the defendant to withhold twelve dollars per ton for ore shipped to a smelter, and not milled, concentrated, or leached upon the grounds.</p> <p>2. Evidence — Best and Secondary — Pleadings as Evidence. — A pleading containing copies of instruments as exhibits offered in evidence by the pleader is not admissible over objection, no foundation having been laid for the introduction of secondary evidence.</p> <p>3. Appeal — Error—Disposition of Case — Judgment —• Modification When Permissible. — Although appellants may only seek a modification of a judgment, the appellate court may not modify a judgment after eliminating, because it was not shown to be the best evidence, evidence whieh supports the judgment ' and which may properly be supplied upon a new trial.</p> <p>[On Rehearing. Riled May 28, 1906.]</p> <p>1. Contracts — Practical Construction — Time.—In determining the meaning of an ambiguous contract, the construction placed upon it by the parties, whether evidenced by some acts or circumstances contemporaneous with the execution of the contract, or by subsequent acts or circumstances, or formal expression (as in t