Action was brought in the District Court by Collins, the appellee, against Sears, the appellant, to compel a conveyance of the undivided one-half of a mining claim called the Bough and Beady Lode.
The complaint alleges that in the summer of 1878, complainant Collins, was prospecting for mines near a place called Missouri Balls, Gilpin county, and that on the 18th day of July he communicated to Sears, his brother-in-law, the fact that he had found some rich float or surface ore; and that the parties then entered into an agreement for the purpose of pi’ospecting for and locating mines; that in consideration of the •information given by Collins to Sears concerning the place where the fragments of ore had been found, Sears agreed to go there and prospect and search for lodes, and that any and all such as he might find he would locate in the joint names of the two parties, each owning an undivided half, and that Collins was to pay one-half of the expenses of such location and work in prospecting and developing the finds: That under this agreement they went to the place the next day, July 14th) commenced work, and that on the next succeeding day, July 15th, while the agreement was in force, Sears discovered the lode in controversy near where Collins had found the float ore, and pointed out as the place to prospect for mines. That Sears sunk a discovery shaft on the lode, and thereupon afterwards located and had recorded all of said lode in his own name, with intent to defraud Collins out of the share to which he was entitled under the agreement. That the mine had proved to be valuable, and that Sears had taken out and appropriated to his sole use a large amount of ore of the value of $1000. That complainant Collins .had' performed the agreement on his part, and had always been ready to pay the one-half of the expenses, but had not paid the same, for the reason that Sears had never made demand therefor, nor informed complainant of the amount of such cost and expense, or that there was any which he was required to pay. The answer admits that Collins showed appellant Sears some rich float ore or blossom rock)
At the trial, certain questions of fact put in issue by the pleadings were submitted to a jury under instructions of the court, and upon these questions the jury returned as their findings:
First. That on' or about July 11th, 1878, Collins discovered, near Missouri Falls, some ribh float ore as alleged.
Second. That on or about July 13th, 1878, Collins and Sears entered into a contract to prospect foi", and locate mining lodes near Missouri Falls.
Third. That under said agreement, in consideration of the knowledge imparted by Collins to Sears of the place where the surface ore was found, Sears was to prospect for, and locate such mines of value as he should find near the said Missouri Falls.
Fourth. That all the lodes discovered by Sears at and near said place, were, by the terms of the agreement between them, to be located in the names of both parties and to be owned by them jointly.
Fifth. That the Rough and Ready Lode was discovered by Sears near Missouri Falls during the existence of this contract, and that by the terms thereof the property was to belong to Collins and Sears jointly.
Upon the return of these special findings by the jury, the
Against this decree the principal objection made by the appellant, is that it was not established that appellee had complied with his part of the agreement, respecting the payment of one-half of the expenses of discovering and locating the mine; and it is assigned for error, that after the verdict of the jury or return of the findings as above stated, the court refused to allow appellant to amend his answer touching the amount of money expended by him in developing the Bough and Beady Lode, and other lodes, in prospecting for lodes during the time in which it was alleged he was prospecting for himself and appellant. ,
We can see no good ground for this objection. There was no issue made upon this point, and no testimony was offered respecting it upon either side. The appellant sets up in his answer that the expenses equaled the total amount produced from the mine. Under the findings of the' jury, one-half this amount produced belonged to appellee, and since it was appropriated by appellant, it was properly to be regarded as an application of the joint funds to such purpose,\and a payment as such by appellee of his share of the expenses, and in discharge of his obligation under the agreement in this respect. There was, therefore, no necessity for an accounting upon this point, as was asked for and refused, since the testimony relating to it would presumably have been confined to that of the appellant himself, who alone, it is fair to presume, had knowledge of the matter of such expenses incurred by him, and who, it is further to be presumed had truly disclosed this knowledge in his answer. It would have been a very questionable exercise of discretion on the part of the court to permit a defendant, after all the testimony had been heard upon the questions submitted, to amend his answer where it already covered this point. Such a practice would present too great a temptation for the defendant to change an averment in his plea, not to make it conform
Decree affirmed.