I dissent.
I adhere to the views expressed in the opinion in Department. Even if we reconstruct the contract between Harper and his vendees by inserting the words furnished by Mr. Justice Sloss in his opinion, it does not contemplate an immediate vesting in them of two-thirds of Harper's interest in his contract with his vendors Lewis and McGregor; and it seems to me that a transfer of present interest in the original contract could not have been in the minds of the parties because Harper kept the right to abandon the mine at his sole pleasure as well as to forfeit all rights under his agreement with the original locators. This privilege retained by Harper is not consistent, I believe, with a mining partnership *Page 183 then created between him and Sloan and Dwyer. That part of the agreement which gives to Sloan and Dwyer the privilege of refusing further advances after the exhaustion of their first payments is strongly indicative to my mind of the understanding between them and Harper that they were merely getting an option to purchase two-thirds of the interest which should be his if he could successfully meet the requirements of his agreement with McGregor and Lewis. If Sloan and Dwyer had been purchasing a present interest in Harper's contract with McGregor and Lewis, it would not have been necessary to insert in their agreement the clause to the effect that "if James McGregor and B.B. Lewis should, according to the terms of their contract of December 24, 1898, convey the Diadem Quartz Claim to the party of the first part herein, the party of the first part will, within a reasonable time thereafter, make a conveyance to the parties of the second part of two-thirds thereof; and it is further agreed that thereafter the party of the first part shall have the management and control of the operating of the said mine, for which he shall be paid an adequate compensation."
I can see nothing in the contract itself which justifies the supplying of a verb of immediate assignment, and I do not agree with Mr. Justice Sloss in supplying the words "Harperagrees," etc. Why should Harper in one part of the sentence express a wish to transfer his interest in the contract with McGregor and Lewis and then fulfill the wish by executing an immediate transfer in another part of the same sentence? The words "the party of the first part wishes to transfer," etc., indicate a desire to make the transfer in the future. It seems to me, therefore, that a more logical reconstruction of the sentence would be as follows: "Whereas, the party of the first part wishes to transfer to the parties of the second part two-thirds of his interest in and under the aforesaid contract between himself and James McGregor and B.B. Lewis, and wishesthat such interest shall pass to and vest in the said parties of the second part and the parties of the second part agree," etc. This would give to the agreement a prospective operation so far as the transfer of Harper's interest is concerned, more in consonance with the rest of the instrument. If, after expending the moneys paid by Sloan and Dwyer and their refusal to advance any more, Harper had abandoned his contract with McGregor and *Page 184 Lewis, they would have had no recourse against him, because they would have received just what they bargained for, an option to buy an interest in the contract and the mine in case of Harpers success. There was no provision in the agreement binding them to share Harper's losses beyond the payment of his "expenses" — not salary nor "compensation" such as that which was to be his in case they secured a two-thirds interest by assignment — and they were to have no voice regarding methods nor scope of operation. To be sure there may be partnerships in which one partner has large powers of management and control of the business, but in analyzing this instrument we must remember that laymen signing such a contract would scarcely consider themselves partners if they were not plainly made by it sharers in the profits and losses. As I wrote in the opinion in Department I repeat here: "The others advanced money for the purchase of Harper's interest in the mine in case he ever acquired any interest. There was no provision by which they were to share in the output or be responsible for Harper's expenses in the operation of the property until there should have been an actual conveyance of an interest to them by Harper after he should have acquired it from the original locators."