Tarpey

This is an action to recover 133,617.20, balance due on a last installment of $37,500 under agreement to purchase certain magnesite mining claims, to which plaintiff as vendor and defendants Curran and Phillips as vendees were the original parties, and for the foreclosure of a vendor’s lien on said mining claims.

Defendants Thomas, Winter, Piedra Magnesite Company and American Refractories Company are joined as claimants of interests in the mining property and a calcining plant, as purchasers, grantees, assignees, mortgagees and judgment creditors.

The third amended complaint alleges that defendants Winter, Refractories Company and Thomas, with full knowledge of the mutual rights and obligations of the original parties to the contract, and while the same was wholly executory, promoted and incorporated the defendant Piedra Magnesite Company for the purpose of assuming said contract and performing its terms, and became stockholders of said company ; that said company, with knowledge of the rights and obligations of the parties to the contract, took and accepted an assignment of said contract, and agreeably to plaintiff assumed its obligations, entered upon the property and…