Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-01
D3iiI5N 5r7& NO 2214
196i92of bayil LID
I'm THE SUPREME COURT OF
CIi TUE STATE OF NEVADA
BESSIE MILLER Respondent.
VS..
w. B. THOMPSON, Appellant.
H. c. Price, Attorney for Respond
ent.
c. o. Whittemore and Plat & San
ford. Attorneys"for Appellant.
OPINION

Ox41NASAN
Rv the Court, McCarran, ].
This is an action f"l ,on'!att. IL
appears from the record that the
plaintiff had located mining claims
on the open pubic domain IN Fish
Lake Valley, in Esmeralda county'
Nevada, the land embraced witnIn
the claims amounting to some oo,ooo
acres. s-iytf min a.
parties and or which this action IS
founded was in part as follows: r
THAT for and in consideration OF
the sum of one hundred dollars
(SlOO) in hand paid by the econd
party TO said first party, the receipt
whereof is hereby acknowledged,
and other valuable considerations
passing from second party to hrit
party. and the further payment to
first party Nv second party ot.the
sum of one hundred dollars (Sloo)
per month, on or before the flrst day
OF each and every month, begin
ming Nav /, 1912, during a period OF
time herinafter fixed. said money 10
be placed to the. credit OF first party
in the First National Bank OF Los
Angeles, California;; and in further
q consideration Of the terms and co1di-
t;nns hereinafter expressed, said hrst
Marty hereby agrees to r%elinquish, re-
lease and abandon certain mining
claims and tracts of> government
land situated in Fish Lake Valley
Esmeralda County, State Of Nevada,
aDproximately sixty-hve thousand
m5Um acres, the abandonment u
said lands having been placed IN the
hands of second party at the time OF
: the signing Of this agreement.
- "As a further consideration lot
this agreement, said second party
hereby agrees to make apphcatlol
under the law known as the Nafey
Act" in the State OF Nevada lot
withdrawal of all OF said m 50
relinquished and abandoned by hrs'
party and her associates, and also u
make application for withdrawal un -
Z der said Carey Act OF certain otnei
of land in said fIsh Lake val-
lev, Esmeralda County, State OF Ne
vada: the whole OF said lands so apo
Piled for to be approximately one
hundred thousand Qoo,ooo) acres
more or less; and in the event sue
application is approved by the prop
cr State and United States govern
ment officials, said second party shat
appropriate and develop such OF salo
land, as he deems practical and cap
able of development, according &c
arthe provisions OF, said Carey Act; the
same to be sold and disposed OF &c
the best ability of the parties here
TO-. and said first party hereby
agrees to use her best endeavors tc
assist second party in the sale o,
said lands and the promotion OF the
cnternr;se herein provided for, she
to receive no commission on SAFES
made nv her. it being hereby agreed
that second party shall be allowed
such agents commissions as M
deems necessary and advisable top
paid in making sales of said lands
no part of such commissions to D.
paid by first party, .,a
at is expressly provided ina
the second party shall have the fui
and complete control and manage
ment of said business and the enter
prise provided for herein and tn
u right TO make such disposition o
any and all OF said lands as n
deems best. provided. however. tn q.
he shall pay TO first party one,el2n.
of any and all money received fror
sales of land procured under IN,
agreement. or its production. an
tnlt 4 mOUCHIy
rendered by second party to mrs
s.. party of all sales made, and tn
p money coming to first party unde
aL said accounting shall be pace
monthly to her credit in the tlrs
o. National Bank OF Los Angeles, "a
~ifornia.
ut is further agreed that the pay
ment of one hundred dollars (SlU
Der month by second party to mr.
party. %hereinbefore provided 10
So shall cease at the time OF the sale {
ss4 any of the aforesaid lands amour
ing to one hundred and sixty (lo
at acres. 5l- Ss.l JittW -,
tT 1T is further agreed that all o. tt
terms and conditions herein expires
ed shall be binding upon both OF tt
parties hereto and upon their al
each of their heirs. executors, a.
ministrators and assigns"
Two questions are presented
the case at bar, M having 70 +,
) with the right OF the plaintiff IN Il
court below to amend the prayer
49,, her complaint at the conclusion
the presentation Of her case and D
fore the judgment was entered. /
other. which we deem the more sc
ious. is that the evidence Is lnsu
fcient TO warrant the Judgment al
decree of the trial court. j.
In so far as the question OF I
right of the court to admit OF t
amendment to the prayer OF the COZ
~ plant is concerned, the action OF 7
court in this respect comes und
the rule, which we believe well s1
ported by authority, that a pleadil
may be amended so long as the fac
alleged as the basis OF the recove
remain the same. so that a NJ
cause of action is not interpose
and under this rule a pleading m
be amended bv amending the pray
So as TO enl1rge or modify the c
tent of the relief sought.
Johnson 3 TsJ White Mounts
Creamery Assn. IN. H.) 70 Am.
Rep. 61O. -.