Wolfing v. Ralston

Morrison, C. J.: Plaintiff let to the defendants a certain mine, under a written contract or lease, which contained the following clauses:

“ The said parties of the second part are to prospect and work the said vein, lead, or lode, in a good and workmanlike manner, with as little damage to the land for agricultural purposes as a proper mining of the same will permit, and to pay to the party of the first part, or his assigns, every week, twenty per cent, of all the gold that they may take from said vein, lead, or lode, or from the angles or spurs thereof; that they are to work the same without expense to the party of the first part, and keep the same free from any liens or incumbrances for work or labor done on, or for materials furnished for, the working of said mine; that if the parties of the second part should take, during any week, gold sufficient to more than pay for the back expenses of working the said mine, then the party of the first part is to have one third of the gold they may get from said mine after paying said working expenses.

“ That, if the parties of the second part fail to keep the covenants aforesaid, then the party of the first part is at liberty to take full possession of said land and premises without recourse to law, as fully, to all intents and purposes, as if this lease had not been made. In witness whereof, the said con[291]traeting parties have hereunto set their hands and seals, the day and year first above written.”

The following special issues were submitted to the jury:

“ 1. Did the plaintiff and the defendants execute the contract set forth in the complaint ?

“ Answer—Yes.

“ 2. Have the defendants, since the date of said contract, taken out any gold from the mining claim referred to in said contract ?, and, if they have, then how much have the defendants so taken out ?

“Answer—One thousand three hundred and forty-four dollars and eighty-five cents.

“ 3. Have the defendants paid, or offered to pay, to plaintiff, any portion of the gold taken by them from said claim since the date of said contract ?

“Answer—No.

“ 4. If the defendants have taken out any gold from the claim referred to in the complaint, at what time and during what weeks did they take the gold, and how much each week?