Wheeler v. West

Searls, C. This is an action to perpetually enjoin defendants from extracting and removing gold from the mining claim of plaintiffs, situate in the county of Placer.

Defendants had judgment, from which, and from an order denying a new trial, plaintiffs appeal.

The amended complaint avers that on the twenty-eighth day of August, 1883, the defendant entered into the tunnel which penetrates the mining claims in question, and at a distance of about two thousand feet from its mouth wrongfully began to dig the gold-bearing gravel and bedrock on the sides of the tunnel, and to take gold therefrom; that plaintiffs required them to desist from so doing, which they refused to do; that they have continued such acts up to the time of the commencement of this action, and threatened to so continue; that defendants are insolvent, etc.

The answer to the amended complaint denies all wrongful acts on the part of defendants, and avers “that ever since about the fourteenth day of February, 1883, and down to, and including the first day of September, 1883, these defendants were lawfully possessed of, and were actually engaged in working and mining said part of said claim, pursuant to a contract and agreement between plaintiffs and themselves; and defendants aver that they still are, and at all times since the said first day of September have been, entitled under said contract and agreement to continue the working of said part of said claim.”

Defendants justify their acts under this contract, but do not plead it except to the extent, and in the manner above quoted.

At the trial the defendants were permitted, against the objection of plaintiffs, to prove that plaintiffs and defendants entered into a verbal contract, by the terms of which defendants were permitted to enter upon, occupy and mine a portion of the Paragon mining claim, the property of plaintiffs, in consideration of the payment [128]to plaintiffs by the defendants of one fourth of the gross yield of gold to be derived from such mining.

The objection to the evidence under which this verbal contract was established was based upon “the ground that no contract was pleaded in the answer, and no issue raised on any contract.”

A contract relied upon as a cause of action, or defense to an action, should, where opportunity is afforded, be pleaded, either in hæc verba, or according to its legal intendment and effect.