Lindsay v. Warnock

Simmons, Justice.

Warnock entered into a written contract with Lindsay, in which it was stipulated that if Lindsay should find on certain land of Warnock between January 7, 1891, and August 27, 1891, any minerals that would justify the “ employ of labor,” Warnock would convey to Lindsay a half-interest in all the minerals that Lindsay might find, open and develop “ to the extent that it will justify the employ of labor,” with timber and water for mining purposes; it being also stipulated therein *620 that Lindsay should prospect the land at his own expense, and should not stop work over thirty days unless providentially hindered. The winding was signed only by Warnock. On November 11,1891, Lindsay filed an equitable petition praying for specific performance of Warnock’s contract to convey a half-interest in the minerals discovered on the land, and for an injunction to restrain Warnock from selling the land or the mineral interest therein. In his petition he alleged, in substance, that in pursuance of the contract, he went forward and, at great expense and labor, opened tunnels and shafts on the land to the extent of sixty-five feet, about five feet wide and six feet in height; that his labor was rewarded by discovei’ing, within the time specified in the contract, valuable metal and minerals, the technical names of which were not known to him, in a ledge or vein fifteen or twenty feet wide and eight or ten feet thick, extending across the tract of land described; that he also discovered a peculiar medicinal water which he and others had found to be wonderfully effective in the cure of dyspepsia, rheumatism and other diseases, which he had analyzed by the State chemist and which was pronounced by him to be unusually strong mineral water, remarkable for the amount of mineral held in solution, etc.; that the mineral discovered was of great value, and that petitioner had opened and developed the mine to such an extent as to justify the employment of a great number of hands in mining for said mineral, and in the shipment and transportation thereof.

On demurrer by the defendant, the petition was dismissed for want of equity. We think there was equity in the petition. According to the allegations therein, Lindsay had fully performed his part of the contract, and had discovered on the land a mineral which he alleged was of sufficient value to justify the employment of labor, as contemplated by the contract; and we think, *621 under the allegations in the petition, he is entitled to have a specific performance of the contract. Whether the mineral discovered is of .value or not, was not to be decided in the negative on demurrer, because the demurrer admits that it was valuable and would justify the employment of labor in developing it. The record discloses that the j udge of the court below put his decision in this case on the decision in the case of Deweese v. Peacock, 73 Ga. 570 , and dismissed the petition on the ground of want of mutuality in the contract, the plaintiff not having signed it. That case, however, is different in its facts from the present case. In that case it appeared that the plaintiff' was. not really boupd to do anything at all under the terms of the contract. There was no want of mutuality in the terms of the contract in this case, and the plaintiff' having fully complied with his part of it, his failure to sign it was of no consequence. Code, §§1950, 1951. He paid in full, in the precise way appointed by the contract, for the conveyance which he now seeks to obtain.

Judgment reversed. '