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Whalley v. George

Supreme Court of Arizona

June 21, 1938

WILLIAM E. WHALLEY, Appellant,
v.
I. M. GEORGE and ANNA T. GEORGE, Husband and Wife, Appellees

APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment reversed.

Mr. George M. Hill, for Appellant.

Mr. Carl G. Krook, for Appellees.

OPINION

[52 Ariz. 268] LOCKWOOD, J.

William E. Whalley, hereinafter called plaintiff, brought suit in the superior court of Mohave county for a restraining order and injunction prohibiting I. M. George and Anna T. George, his wife, hereinafter called defendants, from in any way interfering with his possession, use and occupancy of certain mining claims situated in Mohave county. The court denied the application for an interlocutory restraining order, and the case was then presented on the demurrer of the defendants. This demurrer was sustained, and plaintiff having elected to stand upon his complaint, judgment dismissing the action was entered on January 15, 1938, whereupon this appeal was taken.

The question is whether the complaint stated a cause of action. It is very lengthy, and we, therefore, summarize it as follows: It alleges in substance that on the 26th day of July, 1933, defendants, who were the owners of three patents and two unpatented mining claims and a certain water right in Mohave county, entered into a contract regarding said claims with one C. F. Weeks. This contract read, so far as material to the issues of this case, as follows:

"For good and valuable consideration, the receipt whereof is hereby acknowledged, I. M. George and Anna T. George, husband and wife, of Kingman, Mohave County, Arizona, parties of the first part, hereby grant to C. F. Weeks, of the City and County of Los Angeles, State of California, party of the second part, the exclusive right and option to purchase and operate the lode mining claims and water right hereinafter described, upon the following terms and conditions: (describing claims).

"2. Purchase Price. $52,500.00 payable at Kingman, Arizona, at the times and in the installments following:

$5,000.00 on or before Sept. 26, 1934;

10,000.00 on or before Sept. 26, 1935;

[52 Ariz. 269] 10,000.00 on or before Sept. 26, 1936;

10,000.00 on or before Sept. 26, 1937;

10,000.00 on or before Sept. 26, 1938;

7,500.00 on or before Sept. 26, 1939.

"3. Possession -- Sampling -- Operation. Second party is granted the immediate possession of said premises and the right to explore, sample, operate and work the same and extract the ...


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