fendant is correct, and is supported both in reason and by authority.

The parties undoubtedly could have made the payment of any installment a condition precedent to a future delivery, and the non-payment of any such installment such a substantial violation of the contract as to authorize the other party to abandon it. But they have not; nor can it be inferred from the language used.

The case of Palm et al. v. The Ohio and Mississippi Railroad Company, 18 Ill. 219, which is quoted from and approved by the supreme court of California, in Cox v. McLaughlin, 54 Cal. 605, is very strong authority upon this point, to which many cases, besides those referred to in the brief of defendant's counsel, might be added.

The case of Hale v. Trout, 35 Cal. 229, which is cited by counsel for plaintiff in opposition to this doctrine, is not a case in point. In that case, "the defendants notified the plaintiffs that they would not receive or pay for any more lumber under the agreement, as they believed the plaintiff's had broken said agreement, and that they, defendants, would hold said agreement at an end." Here was a total abandonment of the whole contract, which would unquestionably authorize the plaintiffs to so treat it themselves. The language used by the court in deciding that case, and which is relied upon by counsel for plaintiff here, was used in view of the above state of facts, and to answer and negative the proposition of the defendants, that notwithstanding this total abandonment on their part, the plaintiffs were bound to tender the remaining portion of the lumber called for by the contract.

The case of Phillips and Colby Construction Co. v. Seymour et al., 91 U. S. 646, is also relied upon by plaintiffs as very strong authority in their favor. At first glance, and disconnected from the facts of the case, and the point under discussion, this would seem to be so. The whole argument of counsel is based upon the following expression in the opinion of the court in that case: "Plaintiffs here had already performed, and the defendant failed to do its corresponding duty under the contract; and defendant having defaulted

on a payment due, plaintiffs are not required to go on at the hazard of further loss."

This language was used in deciding the point raised that the complaint was fatally defective because it did not aver that the plaintiffs were ready, willing, and able to perform their covenants; and the court say that was different from a case where plaintiffs have done nothing, and were required. to put the defendant in default by offering to perform, or showing a readiness to perform, and then follows the language quoted. In the statement of the case the court say that the contract, which seems to have been before them, but not copied in the case, was drawn with "minuteness of detail" usual in such cases; and as no question was made upon the right of the plaintiffs to declare the contract abandoned, it is not a violent presumption to say that, in all probability, in a contract involving so large an expenditure of money, the right to so treat it was expressly provided for. In that case, the court say: "We are only answering the argument that the plaintiffs have lost all right to sue on the contract by their failure to complete the sections in the times named.”

The questions raised in this case were neither raised nor decided in that. To give the language used in the case referred to the force and effect contended for by the plaintiff would in effect overrule the whole current of authority upon this question.

We are also referred to the case of Withers v. Reynolds, 2 Barn. & Adol. 882. That case was assumpsit for not delivering straw according to the following agreement: "John Reynolds undertakes to supply Joseph Withers with wheat straw, delivered at his premises until the twenty-fourth of June, 1830, at the sum of thirty-three shillings per load of thirtysix trusses, to be delivered at the rate of three loads in a fortnight; and the said J. W. agrees to pay the said J. R. thirtythree shillings per load for each load so delivered," etc. It appeared that the plaintiff had refused to pay for the straw upon delivery, and it was contended that he was not bound to do so, and that as no time was named for the payment, he might defer it till the expiration of the contract, or that, at all events, the promises to deliver the straw and to pay for it were independent, and should be enforced by cross-actions.

3 94 3 1192

4 330

5 119

1* 362 1* 851 9 868 13* 178

But the court held that he had a right to be paid toties quoties on the delivery of each load, and the plaintiff's refusal to do so gave him a right to rescind the contract.

In deciding that case, Patterson, J., says: "If the plaintiff had merely failed to pay for any particular load, that of itself might not have been an excuse to the defendant for delivering no more straw; but the plaintiff here expressly refuses to pay for the loads as delivered; the defendant, therefore, is not liable for ceasing to perform his part of the contract. In commenting on this case, in Franklin v. Miller, 4 Ad. & El. 599, Coleridge, J., says: "The rule is, that in rescinding, as in making contracts, both parties must concur. In Withers v. Reynolds, each load of straw was to be paid for on delivery. When the plaintiff said that he would not pay for his loads on delivery, that was a total failure, and the plaintiff was no longer bound to deliver. In such a case, it may be taken that the party refusing has abandoned the contract."

The facts of the case, and reasoning of the court in Withers v. Reynolds, make it an authority against the plaintiff in this

case.

The judgment of the court below is reversed, with costs of this appeal against the plaintiff, and the cause is remanded to the third district court, with instructions to proceed in accordance with this opinion.

HUNTER, C. J., and TwISS, J., concurred.

HARRINGTON ET AL. v. CHAMBERS ET AL.

NEW TRIAL, WHEN NOT GRANTED WHERE EVIDENCE IS CONFLICTING.— Where the evidence is conflicting, an appellate court will not grant a new trial upon the ground that the findings are contrary to the evidence, unless the preponderance is so apparent and marked that the court can have no hesitancy in declaring that the particular findings under review are against the evidence.

ADVERSE CLAIMANT, IN A SUIT BROUGHT AGAINST AN APPLICANT FOR A PATENT, MAY SHOW that the location of the claim applied for is invalid, for the reason that the ground contained therein is embraced by a third claim, in which neither party has or claims any interest.

DECLARATIONS OF A PARTY IN POSSESSION AND CLAIMING TITLE to a min

ing claim, made before parting with his interest, against the validity of

the location of such claim, are admissible in evidence against the grantee of the declarant. MINING CLAIM, WORK UPON, WHAT CONSTITUTES.-Work done outside of a mining claim, if done for the purpose and as a means of developing the same, is as available for holding the claim as if done within the boundaries of the claim itself. One general system of work may be devised, well adapted and intended to develop several contiguous claims, and when such is the case, work in furtherance of the system is work on the claims intended to be developed by it.

DEFINITION OF LODE AND VEIN.-The terms "lode" and "vein," as used in the acts of congress in reference to the location of mining claims, are such "lodes" and "veins " as are so called by miners.

EXPERT TESTIMONY IS ADMISSIBLE TO SHOW THAT A CLAIM CONTAINED SUCH

A VEIN as a miner discovering it would be likely to follow, with the reasonable expectation of finding paying ore.

VALID LOCATION OF A MINING CLAIM MAY BE MADE, whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following them, in the expectation of findin ore. MINERAL VEIN, WHERE MAY BE SHOWN TO EXIST.-Where the validity of a claim depends upon whether a lode has been discovered and located, evidence that such claim contains a vein within its boundaries, at places other than at the discovery point, is admissible.

ERROR IN ADMITTING AS EVIDENCE IN REBUTTAL TESTIMONY WHICH IS NOT TECHNICALLY SO ADMISSIBLE is not sufficient to reverse the judg ment, as such evidence might have been received in the sound discretion of the court.

APPEAL from the third district. The opinion states the facts.

Bennett & Harkness, for the appellants.

It was incompetent to attack the title of the Switzerland by showing that some claim not in controversy or owned by either party, had a better title. If such attack in any case would be proper, it could not be made by proof of the declarations of a third person.

The second and thirteenth assignments of error in law may be considered together. The fifth finding of fact shows no work was done on the Parley's Park claim for more than a year before the location of the Accidental. For this reason the Accidental was located. This location and a conveyance to defendant were set up by supplemental answer. The twelfth, thirteenth, fourteenth, fifteenth, and sixteenth findings of fact show this claim was held and worked in compliance with mining laws. To obviate this, and to prove work

on the Parley's Park claim, the plaintiff showed work on the shaft on the Lady of the Lake claim, and the findings in favor of plaintiff are based on this work, shown by the evidence of Benjamin W. Morgan; the admission of this evidence was error: U. S. R. S., sec. 2324; 43d Congress, c. 41, p. 315; Mt. Diablo Co. v. Callison, 5 Saw. 440.

The law requires the discovery of a lode-not of something a miner may call a lode. If as experts the witnesses could give opinions, they could only give their own opinions, and it was not competent for them to state what would be the opinions of miners. This is extending the testimony of experts beyond the bounds of facts and their own opinions on the facts, and further than any authority will justity: 1 Greenl. Ev., secs. 440, 441; 53 N. Y. 603; 54 Id. 90.

The witnesses on the part of the plaintiff, to prove a discovery of a lode at the time of location, were permitted to state indications of a vein at other points on the claim, and to compare indications at the Parley's Park discovery with indications at the surface in other mines. The question disputed was as to the existence of a lode at the discovery point, and the evidence had no tendency to prove this.

Sutherland & McBride, for the respondents.

The great weight of the evidence is in favor of the finding that a vein was discovered in the Parley's Park. But on protest suits the issue is made exclusively on the question of the "right of possession," and the mineral character of the claim is not one submitted to the jurisdiction of the court by the law.

The portion of the fifth finding of fact noticed in the third assignment of error on the motion for new trial is an objection to the testimony introduced of work done on the shaft. located on the Lady of the Lake claim, to prove assessment work on the Parley's Park claim. The testimony is relevant and proper: English v. Johnson, 17 Cal. 107.

The late case of Mt. Diablo M. Co. v. Callison, 5 Saw. 440, fully sustains this rule and the ruling below.

It is objected that the witness Kennelly was allowed to state what Caine, one of the locators of the defendants' claim, the Switzerland, said about the location and its being bad,