founded on the payment of a forfeit by the purchaser, in case he fails to consummate the bargain within the time stated, he could not be held to pay the forfeit; 1 and if there had been a part payment on the same, the part paid would be construed as the consideration for his option and the seller would not be permitted to recover the balance.2

§ 260. Agreements to prospect for minerals. It is quite common, in the mining districts, for persons to enter into agreements to prospect for minerals, and in case the ore is found, on the tract of land to which their operations are confined, to locate a claim thereon in the joint names of the parties who participate in the mining adventure.3 When mineral is discovered, under such an agreement, the parties to the contract are considered tenants in common of the mines developed and each is entitled to his share of the profits under the contract. Those, however, who have laid idle and failed to contribute their share of the expense during the operations and prospecting, and those who have. abandoned the contract, cannot come in for their share of the profits after the discovery of ore; 5 nor can the parties to the original contract claim the benefit of discoveries

1 North Georgia Min. Co. v. Lattimer, 51 Ga. 67; Gordon v. Swan, 43 Cal. 564. See also Finerty v. Fritz, 1 M. M. R. 438.

2 Ante, idem; Luckhart v. Ogden, 30 Cal. 547. 3 Wade's Am. Min. Laws, § 155, pp. 221-2. But such contracts, like agreements to work mines, cannot be the foundation for an action of specific performance. Fry Spec. Per. Con., p. 65; Flint v. Brandon, 8 Ves. 159. See Mor. Min. Rts. (10 Ed.) 247.

'Wade's Amer. Min. Laws, supra; Henderson v. Allen, 23 Cal. 519. See, as to contracts to test land for a per cent of the ore found and the legal phase of such agreements, Cook v. Andrews, 36 Ohio St. 174; Leavers. Cleary, 75 Ill. 349; Woodworth v. McLean, 97 Mc. 325; 7 Fed. Rep. 634. For contract to seek for coal and when found, to pay for same, see Oliphant v. Woodman Coal Co., 15 M. M. R. 365.

Wade's Am. Min. Laws, supra; Settembre v. Putnam, 30 Cal. 490.

made by their prospector on a different tract of land 1 or under a new contract which he had entered into with different parties. But after discoveries are made, if the land is located under the original contract, an action for specific performance could be maintained to compel the party locating in his own name, to make conveyances of the shares due the other parties under the contract.3

§ 261. Agreements to lease. An agreement to lease land for mining purposes, if founded on a valuable consideration, and in the nature of a valid, subsisting contract, will be supported by the courts, and if the party promising to lease, afterwards refuse to execute the lease, the promisee under the contract can maintain an action for the specific performance of the same, or recover damages in an action against the promisor for the breach. In an action for

1 Johnstone v. Robinson, 2 Col. Law. Rep. 110.

2 Ante, idem. Wade's Am. Min. Laws, pp. 221-222.

3 Sears v. Collins, 1 Col. Law. Rep. 489; Welland v. Huber, 8 Nev. 203. "A contract by several to purchase jointly an interest in a mine, is for the benefit of all, and if one party takes the title in his own name, he may be compelled to convey to the others." Wade's Am. Min. Laws, p. 222; First Nat. Bank v. Bissell, 1 Col. Law. Rep. 158; Settembre v. Putnam, 30 Cal. 490. "A verbal contract between A. and B., by which A. agrees to go upon the public domain and search for mineral deposits, being supplied at the cost of B., the discoveries to be located for the joint benefit of the two, violates no provision of the Statute of Frauds." Murley v. Ennis, 2 Colorado, 304; M. M. D. 213.

4 Morgan v. Morgan, 14 L. J. (N. s.) C. P. 5; B. & W. L. C., p. 417. Whether an instrument is a lease or a contract is properly left to a jury. Moore v. Miller, 8 Pa. St. 283.

5 Fry on Specific Performance of Contracts, 103 et sub. But the promise to lease must be reasonably certain and definite before the courts would enforce such a contract. Fry Spec. Per. of Con., p. 165 et sub. And where in the sale of a piece of land, there was a stipulation that royalty of so much per ton should be paid by the purchaser to the vendor on all mineral found in the land, although plainly intended as a lease, the court would not enforce such a contract, there being nothing

damages for the breach of such a contract, the measure of damages would be the value of the privilege or right that the promisee held under the contract,1 and in estimating the amount of damages, the quantity of the mineral, or the thickness of the veins, the depth of the mineral below the surface, the amount of royalty to be paid, and all other matters going to show the value of the promisee's rights under the contract, should be taken into consideration.2 But the rule for calculating the damages is not very reliable, and the amount of damages recoverable must depend upon the facts and circumstances of each particular case and in estimating the damages a reasonable value should be placed upon the promisee's right and no speculative value of the profits should be considered in determining the amount to be recovered.3

§ 262. Contract to purchase. - Contracts to purchase mines, or mineral property, are also supported by the courts,4 and provided the seller can show a precise compliance with the conditions of the contract on his part, if the promise to purchase is based upon a valid subsisting contract, the action of specific performance will lie to compel the pur

to guide the court, except the rate of royalty, as to the intention of the parties. Williamson v. Wooten, 3 Drew. 210; Fry Spec. Per. of Con., p. 170 and cases cited.

1 Chambers v. Brown, 69 Iowa, 213; 15 Am. & Eng. Enc. of Law, p. 599.

2 Ante, idem. As to the status of lessee's rights before entry under such a contract, see Austin v. Huntsville Coal Co., 72 Mo. 535.

3 Chambers v. Brown, supra. "A party undertaking to lease mines, having no authority at the time so to do, but afterwards acquiring the requisite power, is bound then to fulfill his contract. Carne v. Mitchell, 15 L. J. Ch. 287. But such contract cannot be enforced against a limitation imposed upon the power." Id. M. M. D. 189.

4 Blanchard & Weeks Ld. Cas. 344-345; Curling v. Flight, 5 Hare, 244; s. c. 6 Id. 41; 2 Phillipps, 614.

chaser to perform his part of the agreement,1 or damages suffered on account of the breach, which would ordinarily be the difference between the contract price and the market value of the mine, would be awarded to the seller.2 The statute of frauds, however, applies to agreements to purchase mines the same as to other contracts, where the title to real estate is involved,3 and if the contract is in substance an agreement to purchase land, in order to be valid, the contract must have been reduced to writing and contain the other statutory requirements, to take the contract beyond the statute. And where the agreement to purchase is made by several parties, and they are to take joint interests in the mine, or mining property, the same rules prevail as when an agreement is made by two or more parties to prospect for minerals; 5 and if the title to the property is taken in the name of any one of the purchasers,

1 Curling v. Flight, supra; Fry Spec. Per. Con., p. 418; Parker v. Frith, 1 S. & S. 199; City of London v. Mifford, 14 Ves. 58. See Chapter, Specific Performance of Mining Contracts.

2 Bisp. Prin. Eq., § 364; Smaltz's App., 99 Pa. St. 310; Truley v. Aiker, 1 Gr. Cas. 83; Dalzell v. Crawford, 1 Pars. Eq. 37.

3 Felger v. Coward, 35 Cal. 650; St. John v. Kidd, 26 Cal. 269; Patterson v. Keystone Min. Co., 30 Cal. 360; Goldler v. Fett, 30 Cal. 481; B. & W. L. C., p. 441 et sub. "A contract whereby defendant agreed to sell, and plaintiff agreed to buy, all the oil they may require for their own use for a period of twelve months from the date hereof,' was not void for want of mutuality." Manhattan Oil Co. v. Richardson Lubricating Co., 113 Fed. Rep. 923. "Where a contract for the sale of certain coal is in writing and free from ambiguity, it is the duty of the court to construe it, and to instruct the jury accordingly." Excelsior Coal Min. Co. v. Virginia Iron & Coal Co., 66 S. W. 373 (Ky. 1902).

4 But this was not the rule in California prior to the Act of 1860. See Patterson v. Keystone M. Co., 23 Cal. 575; Goller v. Fett, 30 Id. 481. And the transfer is good in the absence of a seal. Draper v. Douglas, 23 Cal. 347; Crary v. Campbell, 24 Cal. 634.

5 Gore v. McBrayer (18 Cal. 582), where a contract by several to purchase mines was held a mining partnership and the agreement within the statute.

the other parties to the contract can compel him to convey to them their interest in the property,1 and he would be considered as trustee of a resulting trust of the shares of the different parties to the contract.2

§ 263. Covenants to work mines. It is quite frequent for the lessor or licensor of mining property to impose upon the lessee or licensee, in the instrument of demise, or by means of certain rules governing their mining operations, the obligation to perform and prosecute his work in a" skillful and workmanlike manner."3 The words sometimes used are that he will continue work, "with due diligence and without delay," 4 but any similar language,

1 Wade's Amer. Min. Laws. p. 222; First Nat. Bank ». Bissell, 1 Col. Law. Rep. 158.

2 Bisp. Prin. of Eq., § 80 and cases cited.

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3 Blanchard & Weeks Ld. Cas., p. 440; Abinger v. Ashton, 9 Mook Eng. R. 585; L. Rep. 17 Eq. 358. Custom will control mode of working in the absence of express stipulations. Ante, idem. As to what will constitute working in a "workmanlike manner," see Lewis v. Fothergill, L. R. 5 Ch. App. 103; Carr v. Benson, L. R. 3 Ch. App. 524; Quarrington v. Arthur, 10 M. & W. 335. Upon a covenant to work in a proper and workmanlike manner,' the court will not take either extreme of meaning which may be contended for upon those words, but will look to the lease to see how far the landlord has protected himself by the special terms of the contract." Lewis v. Fothergill, L. R. 5 Ch. App. 103; M. M. D. 104. "Where a lessee of coal mines covenants by the terms of his lease to work the same during the continuance of his lease in a good and workmanlike manner, he is liable for a breach of his covenant, notwithstanding it may be beyond his power to perform it; but if the coal mines become exhausted, that will excuse him from any further performance." Walker v. Tucker, 70 Ill. 527. M. M. D. 186.

4 Lewis v. Fothergill, supra. "The defendant agreed to grant the plaintiff a coal lease for twenty-one years; the only rent reserved was dependent on the quantity raised, and was made payable quarterly. The court held, on the construction of the contract, that the plaintiff was bound to commence working immediately and to proceed continuously." Sharp v. Wright, 28 Beav. 150; M. M. D. 192. "A covenant to mine without delay which is broken by a fraudulent delay, allows of