8 Nev. 203 | Nev. | 1873
By the Court,
The complainants substantially allege: That in the month of December, 1871, they and defendant formed a copartnership for the purpose of discovering and locating mining claims; that in consideration of a prospecting outfit furnished the defendant he agreed to devote his time and services in prospecting for and locating mines in which all of the parties
Complainant Koch sold all of his interest in the four hundred feet located in the name of the defendant before the filing of the bill. The bill prays for a dissolution of the partnership, and a conveyance to Welland and Gross of one hundred feet of the four hundred feet located in the name of Huber, and for costs.
Defendant answering denies having made any agreement of copartnership, and that any copartnership between himself and complainants ever existed ; and denies that the complainants are or ever were the owners of or entitled to a conveyance of the four hundred feet or any part thereof.
The case was tried by the court. The facts found were: “ That on or about the 25th day of December, a.d. 1871, plaintiffs and defendant entered into a verbal agreement to prospect for and locate mines,, by which it was agreed by plaintiffs to furnish provisions, money and a horse for the use of defendant; and defendant agreed to give his services in prospecting for and making locations in Chief Mlm'-ng District, Lincoln County, Nevada, in which all parties were to be equal owners;” that the complainants substantially complied with their part of the agreement; that under this agreement the Huber ledge was located by the defendant; that in February, 1872, Gross and Welland each sold two hundred feet of the Huber mine to the defendant, and “after selling and conveying two hundred feet each in the Huber mine they claimed and acknowledged to have sold out of said mine, and to have sold their interest in the same;” that no copartnership has existed between the parties since about January 1, 1872.
The district-judge ordered judgment to be entered in favor of the defendant; and from the judgment and an order denying a new trial this appeal is taken. At the trial the defend
The admission of this testimony for the purpose of proving that the defendant had acquired the interest of Welland and Gross in the four hundred feet was manifestly erroneous. The fact that the defendant was bound to defend upon the ground assumed by his pleading and no other, is a sufficient answer to the position taken by the district judge. Smith v. Clarke, 12 Vesey, 476; Clarke v. Turton, 11 Vesey, 240; Gordon v. Gordon, 2 Swanst. 400; Blake v. Marnell, 2 Ball & B. 35; Beach v. Fulton Bank, 3 Wend. 573; Woodcock v. Bennett, 1 Cowen, 734.
In James v. McKernon, 6 Johns. 543, upon the question whether a defense was properly in issue, Oh. J. Kent said: ‘‘ The good sense of pleading and the language of the books both require that every material allegation of this kind should be put in issue by 'the pleadings, so that the parties may be duly apprised of the essential inquiry and may be enabled to collect testimony and frame interrogatories in order to meet the question. Without the observance of this rule the use of pleading becomes lost, and parties may be taken at the hearing by surprise.”
No demand for a deed was.alleged or proven. The object of a demand is to place the defendant in default, and with some exceptions an action at law for non-performance of a contract can only be maintained upon such technical default. The New York court of appeals, in Bruce v. Tilson (25 N. Y.) say, £ £ The distinction between . an action for a specific performance in equity and a suit at law for damages for non-performance, is this, that in the latter the right of action grows out of a breach of the contract and a breach must exist before the commencement of the action, while in
Costs in equity are in tbe discretion of tbe court, and if tbe plaintiff unreasonably enforces an equitable right, depriving tbe defendant of an opportunity to satisfy tbe claims made upon him without suit, tbe relief may be granted without costs, or tbe plaintiff may be compelled to pay tbe costs of tbe defendant.
If Huber located tbe four hundred feet in bis own name in pursuance of the alleged partnership, be did so under an an implied promise to convey to tbe complainants their interest in it upon request. Tbe complainants at once acquired a right to a specific performance, and that right could be enforced in equity without a previous request.
Tbe judgment and order of tbe district court are reversed and cause remanded for a new trial. „