Tilton v. Sterling Coal & Coke Co. option at any time during the day on which the lease terminated, but had no right to do so on any day thereafter. It is also contended by the respondent that he had the right, without making a tender of the $3,000 to bring his action for specific performance within a reasonable time after the termination of the lease, because the appellant by its letter of February 26, 1902, before quoted, notified the respondent that it would not perform the conditions, on its part, of the option, and that said notice was not subsequently withdrawn. In support of this contention numerous cases are cited which hold that when one of the parties to a contract refuses to perform, or notifies the other party of his determination not to perform, his part of its obligations, a demand for performance, or a tender or offer to perform by the other party, unless the previous notice has been withdrawn, is unnecessary, and not required before commencing suit. This principle is not applicable to the case at bar, because, as before stated, until the acceptance of an option in accordance with its terms, no contract of purchase exists, and the party giving the option is under no obligation to convey the property mentioned therein. It appears from the record that the irrigation companies of the towns of Gunnison and Sterling, in an action against the appellant, were decreed to be the owners and entitled to the use of the two second 7 feet of water leased to the respondent, and that after the rendition of said decree the respondent was deprived of two second feet of water leased to him. For this loss he was awarded $800 as damages. It is ordered that that portion of the decree awarding damages be affirmed, and that portion requiring a conveyance of the water, and enjoining the appellant, its successors and assigns, and all persons claiming under it, be, and is hereby, reversed and held for naught, and that each party pay their own costs of this appeal. BARTCH and MCCARTY, JJ., concur. Hearst v. Putnam Mining Co. PHOEBE A. HEARST and JAMES B. HAGGIN, Appellants, v. THE PUTNAM MINING COMPANY, a Corporation, THE QUINCY MINING COMPANY, a Corporation, WILLIAM M. FERRY, HENRIETTA MCLAUGHLIN, as Administratrix of the Estate of D. C. McLAUGHLIN, Deceased, W. W. ARMSTRONG, JAMES T. CLASBY, JAMES FARRELL, W. V. RICE, DAVID D. ERWIN, HENRY NEWELL, DAVID KEITH and WALTER SCOTT, Respondents. No. 1543. (77 Pac. 753.) 1. Corporations: Disposition of Property. A corporation has the same dominion over its property, with the same right of disposition, as a private person.1 2. Same: Fraudulent Conveyance: Action: Rights of Stockholders. Where a corporation has exercised the right of disposition of its property, stockholders thereof cannot in their own right maintain a suit to cancel the conveyance on the ground of fraud giving rise to a trust in their favor, er maleficio or otherwise; the act complained of having been fully consumimated, and the title of the property having passed to third persons. 3. Same: Judgment: Res Judicata. Where a suit to cancel the conveyance of the property of a corporation on the ground of fraud was instituted by stockholders suing in the right of the corporation, a judgment therein, rendered by a court of competent jurisdiction, that there was no fraud, is conclusive on other stockholders in a subsequent suit for the same purpose, based on the same facts. 1 Weyeth H. & M. Co. v. James-Spencer-Bateman Co., 15 Utah 110, 47 Pac. 604. Hearst v. Putnam Mining Co. (Decided July 28, 1904.) Appeal from the Third District Court, Salt Lake County.-Hon. C. W. Morse, Judge. Action in equity to have certain mining transactions declared null and void. From a judgment in favor of the defendants, the plaintiffs appealed. AFFIRMED. Messrs. Marshall & Royle and C. C. Dey, Esq., for appellants. Messrs. Pierce, Critchlow & Barrette for respondents; Arthur Brown, Esq., H. P. Henderson, Esq., Andrew Howat, Esq., and Ogden Hiles, Esq., of counsel. STATEMENT OF FACTS. This is an action in equity resulting from certain mining transactions, whereby the plaintiffs claim they were defrauded.. From the pleadings and the record, it appears, in substance, that the defendant Putnam Mining Company was a corporation organized under the laws of Utah, with a capital stock of 100,000 shares, of the par value of $10 each. When the transactions, of which complaint is made, occurred, each of the plaintiffs was the owner of 3,293 shares of that stock. The company owned twelve mining claims, with all their "appurtenances, buildings, tunnels, shafts, tools thereon and therein," situate in Summit county, Utah. The defendant William M. Ferry was the vice president and a director of the company, and on about October 16, 1895, the company gave him a lease and bond on said mining property, whereby it was, in substance, agreed that Ferry should, at his own expense, operate and develop Hearst v. Putnam Mining Co. the premises for a period of two years from the date of the lease, and should yield and pay to the lessor 20 per cent in value of all pay ores which he would mine and extract under the lease; that the lessee should have the disposal of certain "treasury stock" of the company, to aid him in defraying the expense of developing the mine under his lease; that he should have an option, at any time before the expiration of the lease, to purchase the said premises and property for the sum of $300,000, the money to be paid to the lessor; and that the lessee would not assign the lease, or any interest therein, without the consent of the lessor. There after the lease and bond were extended to October 16, 1898, and on May 20, 1898, they were extended to October 16, 1900. On August 15, 1899, the lessee, having then become financially unable to proceed with the work of developing the property, assigned an undivided two-thirds interest in his lease and bond to Francis Smith and David C. McLaughlin, both of them since deceased, on condition that the Putnam Company would consent to such assignment. The assignees, by the assignment, agreed to prosecute the development work on the property, agreeably to the lease, at their own expense, upon the condition that the assignor would procure a reduction, in the purchase price of the property under the option, from $300,000 to $50,000. On September 18, 1899, the regular annual meeting of the stockholders of the Putnam Company was held for the election of officers, and such other business pertaining to the business and property of the company as might properly come before it. At that meeting the stockholders present, representing 66,411 shares of the 99,360 shares of the capital stock then issued and outstanding, did, by unanimous vote, adopt and pass a resolution authorizing and instructing the board of directors of the company, by its president and secretary, to execute and deliver to Ferry an instrument in writing changing and modifying the lease and bond in the particulars following: Hearst v. Putnam Mining Co. (1) Extending the time of said lease and bond or option to purchase from October 16, 1900, to October 16, 1903. (2) Reducing the amount to be paid for said property, under said option to purchase, from $300,000 to $50,000. (3) Permitting Ferry to make such disposition of the lease and bond, by subletting or otherwise, as, in his discretion, he might deem to be for the best advantage in developing the mining claims. And thereafter the president and secretary of the Putnam Company executed and delivered to Ferry, under the seal of the corporation, the instrument thus required by the resolution, modifying the lease and bond in the particulars mentioned. The assignees then proceeded, under the lease and bond, to prosecute the work of mining, and developing the claims. They sunk a shaft to the depth of 400 feet, and did other mining work at a cost to them of over $33,000; and afterwards the lessees, and others associated with them, organized, under the laws of Utah, the defendant Quincy Mining Company, with a capital of $75,000, and Ferry and his associates assigned the lease and bond to the latter company for shares of its capital stock. On December 6, 1901, the Quincy Company elected to exercise the option, under the lease and bond, to purchase the mining claims and property for $50,000, and thereupon paid that sum to the Putnam Company, and received from it a deed to the property, as provided in the lease and bond and the modifications thereof. A part of the sum thus paid to the Putnam Mining Company was used by that company to pay its debts, and out of the entire residue a dividend of forty-eight and one-half cents per share was declared on its capital stock, which was paid to its stockholders; and the plaintiffs received and accepted the dividends on their shares of stock, the same as did the other stockholders of the company. The plaintiffs allege in their complaint that all these various transactions by which the property of the |