Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers, Judge.
Frank J. Hangs, for Appellant.
Thompson, Morehouse & Thompson, for Respondents.
By the Court, Talbot, C. J.:
The findings of fact in this action are set out with the findings in the case of H. E. Clark, one of the plaintiffs herein, against the same defendants (see page 447, ante), in the opinion this day filed in that case, which relates to the same property and agreement. Under the facts and the law as determined in that case, the judgment in this case must be reversed.
The claim and recovery by Clark in that action being for an undivided one-half interest in the Helen mining claim, which was a relocation of the Whirlwind No. 4, and the claim in this action being for an undivided three-fourths interest in the ground within the lines of the Silver King Fraction, and lapped by the Helen, the further question has arisen as to the extent of the recovery in this action. The Helen having been located in the names of the three defendants, instead of in the names of Clark and Mitchell, as agreed by Clark and Mitchell, it is said that there is no evidence in the statement showing that Shannon had any knowledge of the agreement between Clark and Mitchell, and consequently it is argued that Shannon is entitled to hold a one-third interest which could not be affected by the agreement of which he was not aware. If Shannon had made the location for himself, or by an agent who was not aware of the agreement, there might be some force in this contention; but, according to the evidence of Mitchell and Shannon, the location was made by Mitchell, who placed Shannon's name on the location notice, and consequently any rights Shannon obtained in the property were acquired through an agent who had knowledge, binding upon Shannon, that Mitchell
had agreed to do the work on the Silver King Fraction for a one-quarter interest, so as to preserve the rights of Clark and Stingley to the remaining three-quarters interest in that claim. On the theory that notice to the agent is notice to the principal, and the agent being well aware that he had agreed to perform the work to protect from forfeiture the rights of Clark and Stingley, they are entitled to a judgment for an undivided three-fourths interest accordingly.
In remanding a case it is seldom that this court will order the entry of a reverse judgment without a new trial, which should always be allowed when there is any probability that new facts might be established which would materially affect the rights of litigants. After the trials in these two cases, the findings are so well supported by the evidence, and by the testimony of the parties themselves, that we conclude that a new and expensive third trial could not in any way change the result, and would be only an unnecessary expense and hardship. Consequently, the district court is directed to enter a judgment in favor of the plaintiffs for an undivided three-fourths interest in the piece of ground claimed by them which was within the boundaries of the Silver King Fraction, and described or demanded in the complaint. If desired or requested by any of the parties the court may take evidence for the purpose of making a description of this piece of ground more specific in the judgment.
On Petition for Rehearing
By the Court, Talbot, C. J.:
This case was considered in connection with the one of H. E. Clark against the same defendants, No. 1984, and the findings and decisions in both cases appear in this volume (pages 447-464 and 464-467). After having given the petitions for rehearing careful consideration, we are still of the opinion that both cases should be remanded, but we will elaborate the decisions reached, and make the
directions to the district court more specific. we adhere to the conclusion that under the agreement between Clark and Mitchell, by which Mitchell promised to do the assessment work on the Silver King Fraction for a one-quarter interest in that claim, the plaintiffs Clark and Stingley are entitled to hold and recover an undivided three-quarters interest in any ground relocated in the name of the Helen which belonged to the Silver King Fraction at the time that claim was forfeited at the end of the year 1909 by the failure of Mitchell to do the work on the Silver King Fraction claim, as he had agreed. If Mitchell had performed his agreement for doing the work on the Silver King Fraction for that year, and had thereby preserved the claim from forfeiture, the three-quarters interest retained by Clark and Stingley would have continued to exist only in the ground which actually belonged to that location; Stingley would have continued to own his half interest ...