Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1875-05-28
SUPREME COURT DECISION.
Joseph G~rrens ct al. Respondents,
vs.. The HUM and Hunt silver min-
ing Company, Appellant.
OPINION ny EARLL, J. ]

lOflNlON BY EARLL, J..
In this appeal, it is only necessary to
consider the question raised by the first
specification in the demurrer to the COM
plant, to-wit: Does the complaint state
facts sufficient TO constitute a cause Of
action The plaintiffs allege, that
heretofore, to-wit, on the LIST day of De-
cember, A. D. 1873, the said plaintiffs,
as the parties of one part, and the said
defendant, as the party of the other part,
at, ETC., made and entered into mutual
written agreement, by the terms of which
the said plaintiffs agreed to run certain
drift in and upon the mining ground of
said defendant, situate, etc, for the dis
lance of $50 feet in length, more or less,
for and in consideration of the promise
and agreement, in said written agree
ment expressed, of said defendant to pay
said plaintiffs the sum of ten dollars, in
gold coin, per foot therefor, in length;
that said plaintiffs. in pursuance of said
agreement, did run said drift the dis
lance in length of 3841% feet; that the
defendant has paid to said plaintiffs the
sum of 1885, gold coin, in pursuance
of said agreement, for work so done and
performed by them, but fails and refuses
to pay the balance of $3.50, gold coin,
now due and payable from said defend
ant to said plaintiffs, in accordance with
the terms of said agreement. 1t is adj
mitted by the counsel for both parties
that the contract was completed on the
part of respondents when they had con-
structed the drift $50 feet, and
it is also admitted by the
complaint that the defendant had
paid them in pursuance OF said agree
ment, So, 1856, gold coin; thus showing,
not only that there is nothing due from
defendant to respondents upon the con-
tract. but that they have been overpaid
thereon the sum of $1,5S5. 1t is true,
respondents allege, that, "in pursuance
of said agreement, they did run said
drift 3S411 feet;" but the contract re-
quired responents to run the drift 1870
feet only. and the complaint contains no
averment showing that the extension
thereof was at the instance of defendant,
or that defendant ever promised to pay
respondents $40, or any other sum, per
| foot therefor. Indeed, the complaint
contains no averment connecting, in any
manner the extension of the drift beyond
! 1870 feet, with the contract declared upon
or any other contract, and, for aught that
appears, it was voluntary on the part of
respondents. 1t is quite probable, how
ever, that the extension of the drift be-
yond the 1870 feet specified in the con-
tract was done pursuant to some agree
ment between the parties, either con
nected with the original contract or by
an agreement Independent thereof. Il
it was provided for by an alteration OF
the original contract, the fact constitu
ting the change and connecting it there
with should have been stated in the com
plant. But if it was done pursuant tc
an Independent agreement, then the &C
ton should have been brought thereon
or upon quantum meruit. We are o
the opinion that the complaint does no
state facts sufficient to constitute causl
of action against the defendant.
The Judgment is therefore reversed
and the case remanded for further pro
ceedngs, with leave to the plaintiffs t.
amend their complaint.
EARLL. j
We concur: BEATTY, j.
/ HAwLEY. G.