delivered the opinion of the court:
The legal position of plaintiff is, that when the defendant conveyed his interest to, the corporation he at once became legally liable to pay the $20,000 mentioned in the contract. The contract of sale was made May 26, 1885, and soon after negotiations were opened between the individual owners in regard to the formation of a corporation and the transfer of their respective interests to it. This was accomplished in September, 1885. Stock was issued to each, respectively, in proportion to such interest. The plaintiff transferred her interest in the mine to the corporation, received her share of stock, and, together with her husband and the defendant, was elected a director of the company thus formed. The corporation worked the mine for over a year, but at considerable loss. The defendant and others personally advanced money to the corporation to aid in the development and working of the mine, but the board of directors finally ordered the work to stop when the money on hand was exhausted. The plaintiff offered to show the mine was not properly worked, which the court refused to allow. The defendant paid $5000 cash on the contract, and was to have the option, within one year, to convey to the plaintiff $10,000 worth of real estate, the value of which was to be determined as provided by the contract. In case he did not so elect to convey the property, then, after defendant should have received $10,000 out of the net profits, he was to pay to plaintiff one-half the net profits of said one-eighth interest until she should have received $20,000, or, in case the net profits of such interest within five years did not enable him to pay such sum, then she was to receive one-half the net profits over said $10,000.
Construing this contract in the light of the language used, the amount the defendant paid in cash, the speculative nature of the enterprise and the early formation of the corporation, in which plaintiff became interested as a stockholder and officer, it is evident the parties did not contemplate or use language to require the defendant to proceed, at his own expense, to work said mine in order to procure such profits. The act of the plaintiff in joining the defendant, her husband and others in the formation of a corporation soon after the execution of the contract, for the purpose of uniting all interests, shows very clearly she had no such, view of the contract. Besides, the nature and amount of the undivided interest that she conveyed, together with the speculative character of the enterprise and the well known uncertainty of results, all contribute to exclude, rather than to raise, the implication that the defendant agreed to work said undivided interest in said mine at his own expense in order to secure such profits. It is not claimed that by the express provisions of the writing the contract required the defendant to work the interest at his own expense. No implication can arise from the contract itself, as the natural and reasonable result of the language used with reference to the subject matter to which it relates, that would authorize or require such a construction of this contract. Bouvier defines implied contracts as being such as reason and justice dictate and which the law presumes that every man undertakes to perform. There is in this agreement, by its terms and language, an entire absence of such elements as would constitute an implied contract or require the defendant to work that interest at his own expense.
The judgement of the Appellate Court for the First District is affirmed.
T , , „ 7 Judgment affirmed.