Arkansas Valley Smelting Company v. Belden Mining Company

127 U.S. 379 (1888)

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Nature of the Case

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Facts

On July 12, 1881, a contract in writing was made between D and Billing and Eilers. D was to sell and deliver to Billing and Eilers at their smelting works in Leadville ten thousand tons of carbonate lead ore from its mines at Red Cliff, at the rate of at least fifty tons a day. 'All ore so delivered shall at once upon the delivery thereof become the property of Billing and Eilers.' It was to be paid in lots of about one hundred tons each. Upon delivery, it was to be sampled at the works and the sample assayed by either or both of the parties hereto, and the value of such lots of ore shall be fixed by such assay; in case the parties hereto cannot agree as to such assay, they shall agree upon some third disinterested and competent party, whose assay shall be final. The price to be paid by was to be fixed on the basis hereinafter agreed upon by the closing New York quotations for silver and common lead, on the day of the delivery of sample bottle, and so on until all of the said ore shall have been delivered. D began its performance and delivered 167 tons between that date and January 1, 1882, when 'the said firm of Billing and Eilers was dissolved, and the said contract and the business of the said firm, and the smelting works at which said ores were to be delivered, were sold, assigned, and transferred to G. Billing. After this transfer and assignment D continued to deliver ore under the contract, and between January 1 and April 21, 1882, delivered to Billing at said smelting works 894 tons. On May 1, 1882, the contract, together with the smelting works, was sold and conveyed by Billing to P and D then ceased to deliver ore under the contract, and afterward refused to perform the contract, and gave notice to P that it considered the contract canceled and annulled. P sued D and D demurred to the complaint claiming in part that the contract could not be assigned, but was personal in its nature, and could not, by the pretended assignment thereof to P, vest P with any power to sue D for the alleged breach of contract. The court sustained the demurrer, and gave judgment for D. P appealed.