JONES v. HOLDEN

Contract, Construction, Validity. Condition. Nova Scotia. Evidence. The plaintiff, who had filed an application under the laws of Nova Scotia for a prospecting license covering certain mining lands in that province, agreed to sell his rights to the defendant for a certain price, and the defendant agreed to expend not less than $500 in development of the mines within a certain time and "to pay the government fees on said areas that may be necessary to renew them, so as to save all rights to [the plaintiff] during the term of this agreement." By the law of Nova Scotia the plaintiff had no right to prospect or to do anything upon the land until he had obtained a prospecting license, which could not be obtained until he had filed a bond required by statute for the protection of private landowners. Mining, including development work, without first having obtained a license was punishable criminally. After such a license had been obtained it could be transferred. The plaintiff filed no bond and obtained no license. The defendant did nothing, and the plaintiff sued him for breach of his agreement. Held, that the plaintiff had not performed the condition on which alone an obligation of the defendant could arise, that the defendant legally could make no expenditure in development until the plaintiff had filed a bond and obtained a license, and that there was no obligation of the defendant to pay government fees for renewal of rights, because until a license was issued there was nothing to renew.

A contract to expend a certain sum of money within a certain period in the development of certain mines in Nova Scotia under authority merely of an application for a prospecting license, the statutes of that province making it a criminal act to do any such work before a license has been issued, cannot be enforced, and evidence of a general custom in Nova Scotia to violate the law in this particular is incompetent.

KNOWLTON, C.J.

The decision of this case turns on the construction of a contract in writing, for breach of which this action is brought. Apparently neither the plaintiff nor the defendants ever did anything under the contract after it was signed. The breaches alleged were that the defendants failed to expend $500 in the work of development, prospecting for gold upon the areas referred to in the writing, and failed to pay fees to the government on these areas to renew the plaintiff's rights. The Revised Statutes of Nova Scotia which were put in evidence, are important in testing the validity of the plaintiff's claims. All the rights the plaintiff had when the contract was made, or at any time afterward, grew out of his applications for a prospecting license for these areas, and his payment of the fee required by statute to be paid on the filing of such applications. He had no right to prospect or to do anything upon the land until he should first obtain a prospecting license. The words "to mine," are defined in the statute in such terms as plainly to include the development mentioned in the contract. Rev. Sts. Nova Scotia, 1900, c. 18, § 2. Mining without first having obtained a lease or license is punishable criminally under the statute. § 32. A license could not be obtained under the plaintiff's application without his first filing a bond with two sureties for the protection of private landowners, substantially in the form prescribed by the statute. § 157. After obtaining such a license, it could be transferred under the statute, but until the license should be issued, the plaintiff had no legal right which he could transfer.

The contract to expend not less than $500 in the development of the mines, if it is to be construed to require such development by the defendants with no other pretence of authority than the plaintiff's application, was a contract to perform a criminal act, which cannot be enforced.

Evidence from the plaintiff's witness that there was a general custom in Nova Scotia to violate the law in this particular, was incompetent. If the fact were as the plaintiff offered to prove, it would not put upon the defendants a legal obligation to do that which was forbidden by the statute under a penalty.

If the contract is to be given validity it can only be upon the construction that there was an implied understanding that the plaintiff should give the bond with sureties and obtain the license, without which the defendants could legally do nothing, and that the defendants should then go on under his authority. Inasmuch as no one but the plaintiff had a legal right to do this, and as he did nothing, the conditions did not arise which might have put upon the defendants the obligation to expend this money.

The same condition applies to the stipulation that the defendants shall "pay the government fees on said areas that may be necessary to renew them." The only provision in the statute for the renewal of rights of this kind is for the renewal of a license. § 36. There is no provision for the extension of an application beyond the year within which the license was issued. Until the license was issued there was nothing to renew, and no license was ever issued.

Exceptions overruled.