By the Court,
Norcross, J.,
after stating the facts:
Two questions of law are presented upon the appeal' in this case. It is the contention of the appellant that the judgment is not supported by the findings for the following reasons:
First, that the contract was void under the statute of frauds, it being an oral contract which by its terms was not to be performed within one year.
Second, it was an oral executory contract and there was no part performance sufficient to bind the defendant, the *445work performed by the plaintiff being of no benefit to the defendant.
[1] The work for which the defendant was held liable for a one-third part appears to have been done in pursuance of that provision of the original lease relative to the annual work for the year 1910 on the seven demised claims. This work was optional under the provisions of the lease, and to be effective had to be begun during the month of December, 1910, and prosecuted without interruption until completed. The agreement to do this work may, we think, be regarded as an independent agreement to do a certain character of work which was contemplated to be completed within a year, and as to such agreement the statute of frauds would not apply.
[2] But, if we consider the terms of the original lease as controlling, we are of the opinion that the agreement is not void under the statute of frauds as an oral agreement by its terms not to be performed within a year. While the lease by its terms, if fully complied with, may have extended for two years and even longer, nevertheless it could have been terminated by act of the parties within a year according to its specific provisions and without violation of its terms.
[3] If the lessee failed to perform the requisite amount of labor monthly, the lease could be terminated by the lessor. The lease in question in this case is a common form of lease of undeveloped lode mining property. The lessor seeks to have his property developed at the expense of the lessee, while the latter assumes the burden of expense of developing the property in the hope of finding a paying mine. As long as the lessee properly performs the required labor, his lease is nonforfeitable. Should he fail to perform the required amount of work, the lease may be terminated at once by the lessor. If, after the performance of a certain amount of labor upon the property, it appears that further expenditures would be useless, without liability to himself, he may, and usually does, abandon or surrender his lease. (27 Cyc. 719.)
Because the finding of ore in paying quantities is usually problematical when mining leases of this kind *446are entered into, in the absence of provisions to the contrary in the lease, it may be considered within the contemplation of the parties that a showing of conditions upon the leased property which would not justify further expenditure upon the part of the. lessee will warrant the latter in withdrawing from the lease. As such a.showing may be made within the year, the court below did not materially err in finding "that the defendant had a right to withdraw from his venture at any time, ” even though such right to withdraw from the agreement" was never expressly mentioned between the parties. ”
[4] It cannot be said, we think, that the defendant is in a position to contend that he received no benefit from the contract. The contract was for the development of mining property, and the work done might have disclosed a mine of great value. If it did, defendant was in a position to reap a proportional part of the reward of such discovery, and it is not to be presumed that any one in such position would then decline to claim the interest which his contract entitled him to. The right which one has to share in the profits of a rich ore body if discovered ought to be deemed a valuable consideration and benefit in mining contracts of this character.
[5] Appellant strenuously contended. that he never entered into the contract sued upon. That question having been determined by the trial court on conflicting evidence, its finding is conclusive on this court. The court did not err in its conclusions of law based on its findings of fact. .
[6] Even if it could be said that the contract sued upon was within the statute of frauds, the plaintiff, as contended by counsel for respondent, was entitled to recover on a quantum meruit. (Lapham v. Osborne, 20 Nev. 175; 20 Cyc. 299.) Whether recovery in this case could have been, made on a quantum meruit without an amendment of the pleadings is, however, a question we have not considered. See Burgess v. Helm, 24 Nev. 242.
The judgment is affirmed.