(c) It is expressly agreed that no expenditures shall be made in excess of the reasonable demand of this contract. 9. The sum of one million, three hundred and forty-five thousand ($1,345,000) dollars, herewith paid by the Buyer to the Seller, shall be retained by the Seller and applied as an advance payment against the purchase price of seven hundred and fifty thousand (750,000) sets of shrapnel fuse parts and three million (3,000,000) sets of primer percussion parts, furnished, or to be furnished, under. this agreement. 10. The Buyer agrees to settle for the shrapnel fuse parts delivered on or before March 1, 1923, not exceeding the number required to make up seven hundred and fifty thousand (750,000) complete sets, and for the primer percussion parts delivered on or before March 1, 1923, as follows: (a) The Buyer shall credit forty-eight and 6/10 (48.6%) per cent of the value (as determined by the annexed schedule of prices) of the parts so delivered, against the advance payment of one million, three hundred and forty-five thousand ($1,345,000) dollars, and the Buyer shall pay the remaining fifty-one and 4/10 (51.4%) per cent of the value of such parts to the Seller in cash. contemporaneously with the execution of this agreement. Payments for primer percussion parts, delivered after March 1, 1923, shall be made as follows: (b) The Buyer shall credit forty-eight and 6/10 (48.6%) per cent of the value of each lot of primer percussion parts delivered against the advance payment of one million, three hundred and forty-five thousand ($1,345,000) dollars, and shall pay to the Seller the remaining fifty-one and 4/10 (51.4%) per cent of such value, in cash, within ten days after the date of delivery. Payments for deliveries, after March 1, 1923, of such shrapnel fuse parts as taken together with those delivered prior to March 1, 1923, will constitute complete sets of shrapnel fuse parts, shall be made as follows: (c) The Buyer shall credit forty-eight and 6/10 (48.6%) per cent of the value of each lot of shrapnel fuse parts, which taken together with those previously delivered, make complete sets, upon the advance payment of one million, three hundred and forty-five thousand ($1,345,000) dollars, and shall pay to the Seller the remaining fifty-one and 4/10 (51.4%) per cent in cash, within ten (10) days after the date of delivery. It is the intention of the parties hereto that the primer percus sion parts shall be paid for within ten days after the delivery of the same, but that the settlement and payment for shrapnel fuse parts delivered after March 1, 1923, shall not be made, unless deliveries of such parts, taken with those previously delivered, shall make complete sets, or unless those delivered during the term of this contract constitute complete sets of said shrapnel fuse parts. 11. The Buyer agrees to settle for the shrapnel fuse parts delivered by the Seller on or before March 1, 1923, in excess of the number required to make up seven hundred and fifty thousand (750,000) complete sets, as follows: It is agreed that, for the purpose of this settlement, the value of the shrapnel fuse parts so delivered in excess of the number required to make up seven hundred and fifty thousand (750,000) complete sets, shall be $137,859.20; that the Buyer has paid to the Seller, on account of the original contract, in addition to the advance payment of $1,345,000, a net amount of $46,692.22, which amount shall be credited upon the value of the excess parts so delivered; and the Buyer agrees to pay, in cash, to the Seller, contemporaneously with the execution of this agreement, the difference, viz., $91,166.98. 12. The Buyer shall have the right, at any time, on or before sixty days from the date of this agreement, upon written notice to the Seller, to reduce the number of fuse bodies and concussion primer firing pins, designated as parts No. F-2 and F-56 complete, and the number of closing caps, designated as part No. F-3, from 750,000 to any number not less than 500,000. In the event of any such reduction in the number of parts Nos. F-2 and F-56 and F-3 to be delivered, the Seller shall pay to the Buyer 48.6% of the prices (viz. 67¢ and 20¢ respectively) of the parts so cancelled and be under no further liability to the Buyer in respect thereto; and such cancelled parts shall be eliminated in all computations of complete sets of fuse parts. The Buyer shall credit any such payment against the advance payment of $1,345,000 hereinbefore spécified. 13. Time is of the essence of this contract, in respect of the payments hereunder and in respect of all other undertakings and obligations of the parties hereto. 14. This agreement covers the entire understanding of the parties, and this contract shall take effect as of January 5, 1923, regardless of the date on which it may actually be executed. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals, the day and year first above written. In the presence of John Doe (L.S.). [Annex Specifications.] No. 78. Agreement by mining company to sell entire output of its mines and the output of the mines of any corporation in which it may own specified part of the capital stock.11 AGREEMENT, made January 5, 1923, between Doe Mining Co., a corporation, duly organized under the laws of the State of Delaware, and having an office for the transaction of business at No. 111⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Seller"), and Koe Refining & Smelting Co., a corporation, duly organized under the laws of the State of New York, and having its principal office at No. 371⁄2 Broadway, Borough of Manhattan, New York City (herein called the "Buyer”), WHEREIN IT IS MUTUALLY AGREED, AS FOLLOWS: 1. The Seller shall sell to the Buyer, and the Buyer shall purchase from the Seller, during the period commencing with the date hereof and terminating on January 4, 1932, all the lead-silver ores, slimes and concentrates mined upon, or coming from, any and all properties owned, or leased, by the Seller in the Claremont District, in the State of Idaho, and all the lead-silver ores, slimes and concentrates from properties in the said district owned, or leased, by corporations in which, for the time being, the Seller shall own at least three-fourths of the outstanding capital stock, unless said corporations shall already be bound by agreement to sell and deliver their output to others; it being agreed, however, that said properties shall come within this contract, upon the expiration of any such agreement. 2. The lead-silver ores, slimes and concentrates delivered hereunder shall be of a lead assay of between forty (40) and seventy (70%) per cent, and the average product of the mines shall be, 14 Adapted from Norman v. Fed. Mining & Smelting Co. (1917), 180 App. Div. 325, 167 N. Y. Supp. 794. approximately, of the same average analysis as the shipments made to the Buyer from the same mines during the twelve months immediately preceding the date of the commencement of shipments hereunder, unless the Buyer shall give its written consent to the shipment to it of lead-silver ores, slimes and concentrates varying in analysis from that standard. But this contract shall not apply to the zinc, or copper, productions of the said mines. 3. All provisions in this contract, relating to mines which may hereafter be acquired by the Seller, or owned, or leased, by corporations in which the Seller shall acquire stock, shall relate only to mines located in the Claremont District, whose product is similar in character to that shipped by the Seller to the Buyer, during the twelve months next preceding the date of the commencement of shipments hereunder. 4. The Buyer shall buy and accept delivery of all lead-silver ores, slimes and concentrates as hereinabove described, which the Seller shall tender for delivery, in accordance with this contract, as and when the same shall be tendered; and the Buyer shall pay therefor as hereinafter provided. The shipping, or receiving, of any product under this contract, shall not be deemed, or be, a waiver of any right to damages for any previous failure to ship, or receive, any products, in accordance with this contract. 5. For the purpose of determining the net sales price of the product to be delivered hereunder, the value of the product shall first be ascertained, as follows: Silver: (a) For ninety-five (95%) per cent of the silver contents, at the quoted price for silver, which shall be given by Roe & Co. to the Western Union Telegram Co. on the date of the comparison of the original assays by the representatives of the parties hereto at the sampling works. (b) If Roe & Co. shall discontinue the business of supplying such quotations, the parties hereto shall forthwith agree upon some other concern of recognized standing, whose quotations shall, for the purposes of this contract, take the place of those of Roe & Co. If the parties shall fail to agree upon such a successor, within ten (10) days, after either party shall have notified the other in writing of such discontinuance, such a successor shall be appointed by arbitrators, one of whom shall be selected by each party; but, if the two arbitrators shall be unable to agree, then the appointment shall be made by an umpire appointed by them. If either party shall fail to appoint an arbitrator, within five (5) days after it shall have been notified in writing of the appointment of an arbitrator by the other party, or if the arbitrator of either party shall fail to act, within five (5) days after a written request so to do from the other arbitrator, the arbitrator of the party not in default may act alone, and his determination shall be final. Notices hereunder to the respective parties shall be delivered at their respective New York City offices. Gold: For ninety-five (95%) per cent of the gold contents, at the rate of twenty ($20) dollars per ounce, provided that a ton shall contain five one-hundredths of an ounce, or more, per ton. No payment shall be made for gold, if the gold contents shall be less than five one-hundredths of an ounce per ton. Lead: For ninety (90%) per cent of the lead contents, 90% of the average sales price in the City of New York, for common desilverized domestic lead in lots of fifty (50) tons, or more, for shipment within thirty (30) days, as made by the Buyer, during the week preceding the week of the shipment of the lot in question, from the sampling works (that is to say, the average price of the total amount so sold for delivery in New York City), so long as such selling price shall be $4.10 per 100 lbs. or less. Should such selling price exceed $4.10 per 100 lbs., then the price to be paid in settlement for lead shall be 90% of $4.10, plus one-half of the excess over $4.10. Thus, if the selling price shall be $4.20, then the price to be used in settlement hereunder shall be 90% of $4.10, or $3.69, plus $.05, or a total of $3.74. 6. The Buyer shall, once in each week, mail from its New York office to the Seller, at its New York office, a statement of its average selling price for common desilverized lead, during the preceding week; and said statement shall be subject to correction by the Seller in the following manner: (a) Three reputable accountants shall be selected and agreed upon between the Buyer and the Seller, and such accountants, in rotation, may, at the request and expense of the Seller, examine the books of the Buyer, covering a period of two months immediately preceding the first day of the months of January, March, May, July, September or November of each year, during the life of this contract, and shall report to the Seller whether the average sales price of common desilverized pig lead (after taking into account such quantities as shall have been sold in lots of fifty tons or more, |