Page:Federal Reporter, 1st Series, Volume 7.djvu/415

 EHHA, ETC., CO. (UUITED) V, EMHA, ETC., 00. OF N. T. 403 �9. PlbaMKG — AmBIGUITT— CONSTEUCTION. �A plea that ig ambiguous, and may be construed as a plea of affli •- ance of a contract sought to be avoided, by the election to afflrm the same by adopting remedies inconsistent witb its disafflrmance, or as a plea of laches and of acquiescence in the contract, will be construed as a plea setting up one of these defences only ; and where the plea was flled under leave given to flle several pleas, and leave to flle a plea of laches and general acquiescence was refused by the court, the plea •will be construed as intended to be in conformity with the leave to plead as a plea of afflrmance by election of inconsistent remedies, rather than as a plea of laches and general acquiescence. �In Equity. �Final hearing upon several pleas filed by the defendant Company, Park, and Baxter, in bar of the bill of complaint. �On or about April 28, 1871, the defendant company be- came the owner of certain tuining property in Utah known as the Emma mine. The defendants Fark and Baxter were large shareholders in that company. It was, shortly, deter- mined to sell the mine in England. In parsuance of this determination, Park proceeded to London with full authority to represent Baxter and the defendant company in the mat- ter. After mach negotiation the complainant company was organized by Park and others for the purpose of purchasing the mine. This was upon November 8, 1871, and soon after- wards tiie mine, together with certain ore and a balance in money alleged to be on band, was conveyed by the defendant company to the complainant. At the same time, Park, individ. ually, execnted an agreement guarantying to the complainant the quantity of the ore on hand and the title of the mine. The consideration was £500,000 in money and 2.5,000 full- paid shares of the complainant. This consideration was paid to Park in behalf of the defendant company. Park and Baxter, as stockholders in that company, received with knowledge of the facts a portion of the consideration proportioned to the amount of stock held by them. The complainant went into occupation and began vigorously working the mine. In the latter part of the year 1872, some litigation was had in the courts of Utah by complainant, with a corporation known as the Illinois Tunnel Company, growing out of conflicting claims ��� �