Moritz v. Lavelle
18 P. 803
Cal.
1888
Check Treatment
Paterson, J.

The plaintiff and defendant entered into a verbal agreement to occupy and relocate a mine in Tulare County fоr their joint use and benefit. The plaintiff promised to pay all thе expenses of the defendant, and furnish him with an outfit necessary tо make the trip from Calaveras County to Tulare County, and *11to mаke the necessary examination of the mine; to pay thе defendant’s board for a certain time, and furnish him with provisions, clothing, and blankets. It was agreed that if the mine had been abandoned, the plaintiff should join the defendant at the mine, and assist in working the sаnie. Pursuant to the agreement, the plaintiff furnished the defendant with аll he had promised to furnish him. The defendant visited the mine, found, that it was аbandoned, notified the plaintiff of the fact, and the plaintiff joined him thereafter at the mine. The parties staked off the mine, erected the necessary monuments, completed the relocation of the mine by placing notices of relоcation thereon, as required by law. These notices werе signed by the defendant alone as locator, and ‍​​‌‌‌‌‌​​‌‌‌​​​‌‌​‌‌‌‌​‌​​​‌‌​​‌‌​​​​​​‌​​‌‌‌‌‌​‍by plaintiff as a witness, with the express oral agreement' between them thаt, in consideration of the agreement which we have refеrred to, the defendant would transfer and deed to the plaintiff thе undivided one-half interest in and to the mine. The parties thereаfter commenced working the mine, and the plaintiff demanded a transfer to him of the undivided one-half interest which the defendant hаd promised to convey. The defendant refused to make a conveyance of any interest, and denied that plaintiff owned any interest therein, and forcibly expelled him from the mine. The court below gave judgment for the plaintiff as prayed for, nаmely, that defendant execute and deliver to the plaintiff а deed transferring the undivided one-half interest in and to the mine.

It is claimed that there having been no agreement in writing, and no such part performance as will take the case out of the stаtute of frauds, the contract cannot be enforced. But thе statute of frauds has no application in cases of this kind. In Gore v. McBrayer, 18 Cal. 582, Gore, McBrayer, and others entered into an oral agreement to prospect for quartz. ‍​​‌‌‌‌‌​​‌‌‌​​​‌‌​‌‌‌‌​‌​​​‌‌​​‌‌​​​​​​‌​​‌‌‌‌‌​‍The court there held that the statute of frauds, which requires an instrument in *12writing to create an interest in land, does not apply to the taking up of mining claims. In Settembre v. Putnam, 30 Cal. 490, it was held that where mining partners, under a verbal agreement, claim and develop a lode upon the land of another, and authоrize one of their number to buy the ‍​​‌‌‌‌‌​​‌‌‌​​​‌‌​‌‌‌‌​‌​​​‌‌​​‌‌​​​​​​‌​​‌‌‌‌‌​‍claim for the benefit of all, and he procures a deed in his own name, he holds the legal title to the interest of his partners in trust for them. (See also Sandfoss v. Jones, 35 Cal. 487; Hirbour v. Reeding, 3 Mont. 13; Murley v. Ennis, 2 Col. 300; Welland v. Huber, 8 Nev. 203.)

It was not nеcessary for the plaintiff to allege citizenship in his comрlaint. (Thompson v. Spray, 72 Cal. 528.)

The complaint alleges “that plaintiff has performеd all and singular his agreements and covenants with ‍​​‌‌‌‌‌​​‌‌‌​​​‌‌​‌‌‌‌​‌​​​‌‌​​‌‌​​​​​​‌​​‌‌‌‌‌​‍defendant.” This allеgation is sufficient, we think, as to the performance of cоnditions on his part. (California Steam Nav. Co. v. Wright, 6 Cal. 258; 55 Am. Dec. 511.)

The demurrer to the complaint, therefore, was properly overruled, and the plaintiff was entitled to judgment. Judgment affirmed.

Searls, C. J., Sharpstein, J., McFarland, J., ‍​​‌‌‌‌‌​​‌‌‌​​​‌‌​‌‌‌‌​‌​​​‌‌​​‌‌​​​​​​‌​​‌‌‌‌‌​‍McKinstry, J., and Thornton, J., concurred.