Rehearing Denied Sept. 21, 1954.
Fickett & Dunipace, and Robert D. Stauffer, Tucson, for appellant.
E. T. Cusick, Tucson, Francis J. Ryley and George R. Carlock, Phoenix, for appellee.
[77 Ariz. 350] STANFORD, Justice.
This action was brought by appellee Conelly against appellant Owens for the payment of a promissory note with interest and attorney's fees. The case was tried before the court without a jury.
The note was dated January 20, 1951, and was for the principal sum of $8,500, carrying interest at six per cent per annum and ten per cent attorney's fees. The record shows that previously Owens and Conelly entered into an agreement evidenced by a letter which reads as follows:
'Dec. 20, 1950
'Mr. W. F. Conelly
'415 E. Speedway
'Dear Mr. Conelly:
'Confirming our agreement in which you agree to loan me the sum of Eight Thousand Five Hundred ($8500.00) Dollars for a period of time not in excess of One Year from date, I hereby agree as follows:
'The use of this money enables me to carry on development and operational progress at the Abril Mine, Dragoon Mining District, Cochise County, Arizona, which same is owned in fee by Shattuck-Denn Mining Corporation and leased to me on usual ten percent royalty mining contract for a period of five years.
'I do, therefore, hereby covenant and agree that I will pay to you as interest on the said above mentioned loan, the sum of twelve and one half (12 1/2%) percent of the net profits derived from the operation of the Abril Mine by me.
'In the event of a sale on the Abril Mine, you will receive the same stated proportion of all net profits realized from the sale of the property.
'If this is your understanding of our agreement, please sign and return the enclosed copy and this letter will evidence our agreement.
'Yours very truly,
'Sherwood B. ...