23 Mont. 205 | Mont. | 1899
delivered the opinion of the Court.
The plaintiff, claiming to own an undivided one-half interest, amounting ¡to 1434.38, in certain ores treated at the Par,rot smelter, brought this action for damages against the defendant, who, as.constable, had levied upon and seized such ¿interest on exQcutions against the property of Pohndorf, Pear
For the purposes of the case, the facts to be considered in deciding the questions necessarily involved may be summarized as follows: On the 11th day of March, 1896, one Hughes and seven men associated with him, became the lessees for the term of 90 days of the West Elbe lode mining claim. On the same day a written contract was entered into between Hughes and his associates as parties of the first part, and Pohndorf, Pearson and Thompson, as parties of the second part, in which the parties of the first part described themselves as being lessees of the West Elba lode mining claim, and whereby it was agreed, among other things, that the parties of the first part should furnish the labor of eight men each day, and operate the mine, and the parties of the second part should provide all supplies and materials necessary to carry on the work; the net proceeds of the ore, after milling or reduction, to be divided equally, the parties of the first part to have one half and the parties of the second part the other half. From the 12th day of March to the 1st day of May, 1896, the parties of the first part were in actual possession of and working the mining claim, and whatever possession the parties of the second part had was merely constructive. On April 29, 1896, the parties of the second part, named in the contract, for a valuable'consideration sold and assigned to the plaintiff all their right, title and interest in and to about 20 tons of silver and gold ore then contained in the ore house and bins of, and extracted from, the West Elba mine, as well as their right and share in and to the net proceeds of the same as soon as it should have been milled or worked, as their interest appeared by the contract mentioned. After the delivery of the bill of sale to the plaintiff, his agent, in company with Pohndorf, went to the mine, where they found Hughes, who was the
Whether or not Hughes informed his mining partners of
Under the instructions of the court "the jury were in duty bound to find for the defendant, whereas wé are constrained to believe that the evidence tended strongly arid without contradiction to establish the plaintiff’¿'right fo'récover. ‘ There
The order refusing a new trial and the judgment are reversed, and the cause is remanded.
Reversed and rememded.