It seems to me that this is an appeal from a judgment for specific performance of a contract which never was.
Hendricks owned some mining claims in which both he and Peterson believed there was an exceedingly rich body of ore which in times past had been discovered and for reasons best known to the miner who exposed it kept secret and covered over with waste material.
The secret was well kept and the parties hereto were anxious to rediscover the "Glory Hole" as the ore body was called, and to prevent anybody else from finding out about its existence. They hoped to obtain a government loan, and failing that, to get another person with finances to become interested in the venture.
There is no written evidence of any transfer, or promise to transfer, the mining claims or any part thereof to Peterson. Hendricks owned the claims and Peterson had the mining experience necessary to locate the Glory Hole and to extract the ore therefrom.
The record reveals an intention on the part of both men to form a company to extract the ore and to share the profits. In fact, the letter which is partially quoted *Page 323 in the prevailing opinion clearly shows this to be a fact when the sentence in the first paragraph is completed. It reads:
I think we should go ahead as fast as possible on a government loan, however, if Slim gets the necessary money to reach our objective and wants a piece of our mining Co. that will be fine with me.
The second paragraph is sufficiently quoted in the prevailing opinion and need not be copied here.
The trial court thought this letter was sufficient to satisfy the statute of frauds which provides:
. . . No estate or interest in real property, . . . shall be created, granted, assigned, surrendered or declared otherwise than by . . . deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, . . . . [Sec. 25-5-1, U.C.A. 1953.]
One looks in vain in this letter or other writings by Hendricks for any mention of the mining claims or of any indication that Peterson was to have an interest in the land. It is clear, however, that if the company was formed to operate the claims, Peterson was to have a share in the company equal to that of Hendricks.
No company was ever formed; no loan ever obtained; and no third party with money was ever induced to join the proposed mining company.
Peterson furnished some labor and Hendricks furnished the money for expenses and for such help as Peterson hired in doing assessment work, etc.
When the Glory Hole was not rediscovered, Peterson lost his enthusiasm and ceased to do anything further. He sat by while Hendricks spent some $40,000 (obtained from his relatives) in trying to find the ore body. Then when a mining company offered to buy the claims, Peterson himself offered to buy them.1 The offer was to buy the entire fee — not just the 50% which he now claims was all Hendricks owned.
Specific performance can only be granted when the agreement is clear and unambiguous.2
I would reverse the judgment and award costs to the appellant.