Gerrens v. Huhn & Hunt Silver Mining Co.

10 Nev. 137 | Nev. | 1875

By the Court,

Bable, J.:

In this appeal, it is only necessary to consider the question raised by the first specification in the demurrer to the complaint, to wit, does the complaint state facts sufficient to constitute a cause of action? The plaintiffs allege: “That heretofore, to wit, on the first day of December, A. d. 1873, the said plaintiffs, as the parties of one part, and the said defendant as the party of the other part, at, etc., made and entered into a mutual written 'agreement, by the terms of which the said plaintiffs agreed to run a certain drift in and upon the mining ground of said defendant, situate, etc., for the distance of one hundred and eighty feet in length, more or less, for and in consideration of the promise and agreement in said written agreement expressed, of said defendant to pay said plaintiffs the sum of ten dollars in gold coin per foot therefor in length; that said plaintiffs, in pursuance of said agreement, did run said drift the distance in length of three hundred and eighty-four and one-half feet; that the defendant has paid to said plaintiffs the sum of three thousand three hundred and eighty-five dollars gold coin, in pursuance of said agreement, for work so done and performed by them; but fails and refuses to pay the balance of four hundred and sixty dollars gold coin, now due and payable from said defendant to said plaintiffs, in accordance with the terms of said agreement. ”

It is admitted by the counsel for both parties, that the contract was completed on the part of the respondents when they had constructed the drift one hundred and eighty feet; and, it is also admitted by the complaint that the defendant had paid them, in pursuance of said agreement, three thousand three hundred and eighty-five dollars, gold coin, thus showing, not only that there is nothing due from defendant to respondents upon the contract, but that they'have been overpaid thereon the sum of one thousand five hundred and eighty-five dollars. It is true, respondents allege, that “in pursuance of said agreement they did run said drift three hundred and eighty-four and one-half feet,” but the contract required respondents to run the drift one hundred and eighty feet only, and the complaint contains no averment showing that the extension thereof was at the instance of defendant, or that defendant ever promised to pay respondents ten dollars or any other sum per foot therefor. Indeed, the complaint contains no averment connecting, in any manner, the extension of the drift beyond one hundred and eighty feet, with the contract declared upon, or any other contract; and, for aught that appears, it was voluntary on the part of respondents. .It is quite probable, however, that the extension of the drift beyond the one hundred and eighty feet specified in the contract, was done pursuant to some agreement between the parties, either connected with the original contract, or by an agreement independent thereof. If it was provided for by an alteration of tbe original contract, tbe facts constituting tbe change and connecting it therewith should have been stated in the complaint.

But if it was done pursuant to an independent agreement, then the action should have been brought thereon, or upon a quantum meruit. We are of opinion that the complaint does not state facts sufficient to constitute a cause of action against the defendant.

The judgment is therefore reversed, and the cause remanded for further proceedings, with leave to the plaintiffs to amend their complaint.