jury made such findings that this court afterwards held that the company was liable for the amount found by the jury, yet the district court recognized and received the ver dict in favor of the defendant, which it orCered, and rendered judgment thereon in favor of the defendant for costs. Though the jury found that the defendant was liable, the trial court held that under the law there was no liability. The plaintiff then had failed to establish her right to the payment of any sum from the defendant. There was neither a judgment nor a verdict recognized as valid by the district court. No demand was established which the defendant was called on to discharge until judgment was entered on the findings of the jury in accordance with the mandate of this court. The claim in this case, as in that of Railroad Co. v. Gabbert, supra, was for damages resulting from a tort, not recoverable at all at common law, but solely by reason of a statute of the state. The damages were wholly unliquidated prior to the judgment, and no interest accrued, or could accrue, before a verdict was rendered. We think no liability was ever established against the defendant until the 16th day of May, 1894, when judgment was in fact rendered.

The district court is directed to modify the judgment by striking out the allowance of interest, so that it will stand as a judgment rendered on the 16th day of May, 1894, for $5,000, from which date it will bear interest at 6 per cent. The costs in this court will be equally divided. All the justices concurring.

1. The finding of a jury that plaintiffs had not done the $100 worth of labor required by Rev. St. U. S. § 2324, each year on a mining claim. will not be disturbed where, under plaintiffs' evidence, it barely reaches that amount, and the evidence of the defendant makes it considerably less.

2. Evidence of the cost of sharpening picks used in the work on a mining claim, offered on the issue of whether $100 worth of work had been done on the claim in a year, was properly rejected where counsel refused to inform the court whether he wished to show that they had been sharpened on the premises or before they had been taken there.

3. Under the proviso to Rev. St. U. S. § 2324, that failure to perform $100 worth of labor in a year on a claim shall not open it to relocation if the locator has resumed work before relocation, he must have resumed work in good faith, and have prosecuted it with reasonable diligence towards accomplishment of $100 worth of labor, and such prosecution is not shown by evidence that, during the first half of the month before, relocation work was done, but none the last half, and that notice was posted soliciting proposals for $500 worth of work, no excuse being shown for the cessation from work, and it not being shown that the efforts to place the $500 contract were before the relocation.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge. Action by Edward Hirschler and others against William McKendricks. Judgment for defendant. Plaintiffs appeal. Affirmed. This action was brought by plaintiffs to quiet their alleged title to certain mining premises. They claim the premises under the location of the Rose Cleveland claim. The defendant was asserting title to the ground under the location of the Clements claim. The Rose Cleveland was located by plaintiff's' predecessors January 1, 1889. The Clements was located by defendant January 30, 1891. Plaintiff's did not represent the Rose Cleveland in 1889 or 1890. Defendant claimed a forfeiture on the part of plaintiffs by reason of such nonrepresentation. We use the word "representation" as the popular term employed by miners to indicate the annual accomplishment of $100 worth of labor or improvements upon a mining claim. Rev. St. U. S. § 2324. Plaintiff's defend against the forfeiture by allegation and attempted proof that, prior to the location by defendant, they (plaintiffs) had resumed work upon the claim after failure, and before relocation. Rev. St. U. S. § 2324. The case was tried upon the issue of whether the plaintiffs had in good faith. and with reasonable diligence, resumed work upon the Rose Cleveland before the relocation of the ground by the defendant as the Clements. The findings of the jury in this respect were generally and in detail against the plaintiff's. Judgment was entered in favor of defendant, quieting his title in the premises as to the Clements lode. Plaintiffs' motion for new trial was denied. From that order and the judgment, they appeal.

A. C. Botkin and Theo Sheds, for appellants. J. M. Clements, for respondent.

DE WITT, J. (after stating the facts). As to the construction of the words "resuming work," as found in section 2324, Rev. St. U. S., we will not again review the decisions. We are satisfied with the conclusion reached in Honaker v. Martin, 11 Mont. 91, 27 Pac. 397, as announced in the opinion by Mr. Chief Justice Blake. In that case, after reviewing the authorities, the court said: "When, therefore, he availed himself of the statutory privilege of resuming work to preserve his estate from forfeiture, we hold that he should have prosecuted the same with reasonable diligence, until the requirement for the annual labor and improvements had been obeyed." In the case at bar forfeiture for nonrepresentation in 1890 is conceded. The question remains whether, when the relocation was made by defendant (January 30, 1891), plaintiffs had resumed work in good faith, and prosecuted the same with reasonable diligence to or towards the accomplishment of $100 worth of labor performed or improvements made.

value was $75 should not be disturbed.

1. Plaintiffs introduced testimony that two men, Langan and Walsh, for them, resumed work on the night of December 31, 1890, and worked until morning. Commencing again January 2d, these men performed six consecutive days of labor. This aggregated seven days for two men, or fourteen days of labor, which, at $3.50 per day (the ordinary miner's wages), and with a little extra compensation for the nightwork on the 1st of January, footed up a total of $25 for each man, which was paid to them, and which was a reasonable compensation. A miner by the name of Huggins, employed by the other owner in the Rose Cleveland, it appeared, worked 10 days in January before the relocation. This, at $3.50 a day, would equal $35. There was also evidence by plaintiffs tending to show that three men (McDonald, Baatz, and Dulah) worked a day each in December, 1890, at $3 per day, which would be $9. At plaintiffs' estimate of this labor, they would have $94 to their credit in labor performed and improvements made. It was also claimed by plaintiffs that some logs were cut for a cabin before the reloca.. tion. Testimony upon this question was quite indefinite, and the value of this work, if any, was exceedingly small. The crossexamination upon this point did not leave the proof at all satisfactory that there was any substantial value in this labor or im provement. It is sufficient to state that plaintiffs were obliged to push the value of their labor and improvements to the very extreme to reach the $100 mark. They barely reached that mark, if at all, under the best view of their own testimony. On the other hand, the defendant called a number of experienced miners, who had examined the results of the labor alleged to have been performed by plaintiffs in resuming work. They testified as to the reasonable expense of making the excavations which they had examined, and as to which plaintiffs' witnesses had testified. They testified as to how long it would take to do such work. Their testimony cut down the value of plaintiffs' labor to a point from $14 to $36 less than plaintiffs estimated it. The jury found that $100 worth of labor or im provements had not been made before the relocation, and that the value was only $75. We think that under these circumstances, when the plaintiffs were straining every point in their testimony to reach an estimate of $100, and when it was doubtful that they had reached such figure, even in the best view of their own testimony, and when de

The plaintiffs offered testimony as to the expense of sharpening some picks, which it was claimed Huggins used in prosecuting the work upon the claim. This evidence was excluded by the court, and error therein is assigned. It may be that there are circumstances that would justify charging the expense of sharpening picks as part of the costs of representation. We are quite sure that there are other circumstances where such expense could not be allowed as part of the representation work. But in this case we do not think we need inquire into the competency of this testimony, for the reason that it appears by the record that the court, for its own enlightenment, several times asked counsel to inform the court whether he wished to show that the picks had been sharpened on the mining premises which were being worked, or whether they had been sharpened before they were ever taken to the premises. The record further shows that counsel refused to enlighten the court upon this subject, whereupon the court exIcluded the evidence offered. It seems that the court, by this inquiry made of counsel, was endeavoring to ascertain whether the sharpening of the picks was such an expense as, under all the circumstances, should have been allowed. If the sharpening of picks was a legitimate expense, we cannot understand why counsel did not respond to the inquiry of the court, and give the information requested. As counsel chose to give no explanation, and state no facts which would enable the court to rule intelligently upon his offer of testimony, we think the court was justified in excluding the evidence.

2. We now come to the second contention of appellants. They claim that, if they had not completed the $100 worth of labor or improvements, they did show that they were prosecuting such labor with due diligence towards the completion of said $100 worth of la bor when the relocation was made by defendant. But the jury found, and, as we think, the finding was sustained by the evidence, that the plaintiff had ceased all work upon the claim for 15 days before relocation. It does not ap pear that they were obliged to cease labor by the inclemency of the weather, or the rigor of the season of the year, or for any other reason. They had been performing such labor up to the middle of January, and no reason appears why they could not have continued such labor for the last half of January, as well as during the first half. But the contention of plaintiffs is that they were continuing labor in good faith and with due diligence, because they took steps towards the letting of a contract for the performance of $500 worth of work for the purpose of obtaining a patent. The plaintiffs offered to show that when Huggins quit work, about the 14th of January, they posted a notice so

We then

when we located it. I did some work on the Haphazzard ground before it was located as the Haphazzard. I went there the 22d or 23d of August, 1890. I worked about one month after that time. I helped around there a little. I also did a little mining work there. The shaft was on the northeast part of the claim. I began work in that shaft the 22d or 23d of August, and worked about one month. I worked there myself until the night of September 15, 1890. On that night I was working on the upper shaft. Two men were at work there. About 10 o'clock I went up there, and went down in the shaft, and dug it deeper. The more we dug the more we found croppings of the lead. I think we sunk three feet that night,-a narrow trench on this lead. This lead was 14 inches wide. On the east of it the formation was granite. With 1eference to the creek, the east side is the upper side of the shaft. I think we were down 47 feet when this lead was discovered. I did not measure it at the time. sunk 3 or 31⁄2 feet more. This lead contained manganese, also a little talc. The formation on the east side was the footwall of the lead. This lead came through on the east side, and went angling and dipped towards the west. The general course of the vein is a few degrees off of north and south. We sunk four feet in the clear on this lead, when the shaft became dangerous. We then did no further work. We quit work about the last of September. The manganese that I mentioned contained croppings of silver lead ore. The lead matter also carried iron. After making this discovery, we stuck a notice on the claim. We then put up stakes 10 feet in an eastern direction from the shaft, one north of the shaft 12 feet. We measured 300 feet on each side of the northern stake, on the south line of the Compromise ground. We then went to the southwest corner of the Keagan location, and put up a stake there. Six hundred feet to the west we placed another stake. All the places which are indicated on the map we marked with stakes. I do not remember the points as they came, but they are all described in the notice of location. I staked it all around. Patrick Sweeney was with me. After we bad done this staking we sent the location notice on the stage to be recorded." He also testifies that very soon after the discov ery they quit work until in April, 1891. Patrick Sweeney testifies as follows: "We struck lead matter in the shaft about 45 feet down. This lead was struck in bedrock, composed, I think, of granite. I do not know what the lead contained, but it was of such a nature that it could be distinguished from the surrounding rock. I was not in the mine at the time the lead was struck. Mr. Walsh was there. We both went down in the shaft. Mr. Walsh was there sinking the shaft. That night I should judge we sunk three feet further. I think the vein was from 12 to 15 inches wide. The work

that we were doing was sinking in the shaft. After the discovery the shaft was timbered up. I do not know exactly the course or dip of the lead. It came in the shaft from the west,-from the hill side. I stayed at the shaft that night. I wrote a location notice, and put a copy of it on a post. We then staked the ground. We put up four stakes at the four corners of the claim. Mr. Walsh marked them, I remember, ‘A,' 'B,' 'C,' 'D.' He also put the name of the claim on the stakes. The stakes were driven into the ground, and rocks were piled around them." Stephen Pierce testifies as follows: "I have worked in the upper shaft on the ground. I worked there September 16th and 17th. At that time the shaft was 40 or 50 feet deep, I should judge. I went to the bottom of that shaft. On the east side of the shaft there was granite. In the shaft lay a ledge of mineral containing manganese, talc, and lead matter. The course of this ledge was north and south. It dips or pitches to the west. The shaft had been sunk some 5 feet on the ledge, and at the upper side of the ledge about 31⁄2 feet. I measured this ledge. It was about 1 foot wide. It contained some manganese, talc, and quartz. The talc was under the ledge at the footwall. This wall was on the east. The ledge carries silver, lead, iron, and I saw some galena there. I am acquainted with the mines of Neihart. The dip of the mines at that place is generally towards the west. I have been engaged in mining in Neihart ever since I came to the town. As these mines increase in depth the character of the same improves." Thomas Starboard testifies as follows: "I reside in Neihart. My business is mining. I have been engaged in mining since 1870, 21 years or more ago. I am engaged in mining at Neihart. I am foreman in the Monarch mine there. I know the Haphazzard shaft. I was there in April, 1891. I went into it at that time. I went to the bottom. The shaft is about 40 or 50 feet deep. The shaft was timbered to about 5 or 6 feet from the bottom. I saw the lead in the south end of the shaft, 6 or 8 feet up from the bottom. I saw the footwall. I saw the wall on each side of the vein. The vein contains manganese and quartz, with oxidized iron and tale. It was very fair lead matter. The vein pitched to the west. The strike or course of the vein is from northwest to southeast. There was sufficient indication, in my judgment, as a miner, to justify further work in exploiting this vein. I saw no indication of a drift. There was so much water in the shaft." Starboard examined this mine about the time work was resumed, in April, 1891.

This evidence, we think, shows that the discovery was made on this Haphazzard claim on the 15th of September, 1890. A close inspection of the record fails to show that this evidence is contradicted in any respect whatever. We are unable to discover

any conflict in the evidence as to when this discovery was made. It is not disputed that a discovery of a vein or lead was made on this claim by plaintiffs; but the respondents contend that it was not made on or before the 15th day of September, 1890. We find no evidence to sustain this contention of the respondents. This is not a question of the conflict of evidence. The contention of appellants is that there was no evidence to justify the finding of the jury under consideration. We think the position of appellants is amply sustained by the record. As this finding is not supported by the evidence, but is directly contrary to all the evidence in the case, we think the court erred in approving it, and denying a motion for a new trial.

The appellants assign as error the giving of instruction No. 8, which is as follows: "The defendants also insist that, even should it be found from the evidence that plaintiffs' location was otherwise sufficient, as based upon a sufficient discovery of a vein whose apex lay within their ground, yet it is void because it was made in willful and fraudulent violation of the law as to surface ground. On this point you are instructed that the act of congress provides that the locator take no more than 1,500 feet in length, nor more than 300 feet in width, on each side of the vein. This contemplates a location to be made nearly parallel with the line of the vein, and if a locator, knowing the line and course of his vein, and willfully, and with a fraudulent purpose, locate his claim in disregard of such line and course of the vein, and establish its length, not along the vein, but across it, to an excess of several hundred feet or more beyond the 300foot limit allowed by congress for the fraudulent purpose of gaining and appropriating such excess surface ground as his mining claim, this would be in deliberate violation of the law, and a locator so acting could gain no rights whatever thereby, but his location would be absolutely null and void, and he would be left in as bad a position as if one had never been attempted to be made. In this case defendants claim that the line of plaintiff's alleged vein ran in a course practically opposite to the length of their claim as they located it. How this is you will determine from all the evidence before you, but if from such evidence it should appear that such was the case, and that plaintiffs, with the knowledge of the direction of their vein, fraudulently located their claim in disregard of the line of the vein as above defined, then, even though they should satisfy you by a full preponderance of evidence that their location was in all other respects sufficient, yet this fact alone would render location void, and leave them without rights." There is no allegation in the pleadings that plaintiffs in locating the Haphazzard claim committed, or attempted to commit, any fraud against the United States. There was

no evidence introduced to show anything of the kind. If evidence had been introduced for that purpose, we think it would have been error, as there is no issue made by the pleadings that would render such evidence admissible. We think it was error to give instructions that were not warranted by the pleadings and evidence. Brownell v. McCormick, 7 Mont. 12, 14 Pac. 651; Kelley v. Cable Co., 7 Mont. 70, 14 Pac. 633. On ac-. count of the foregoing errors the order appealed from is reversed, and cause remanded for new trial.

DE WITT and HUNT, JJ., concur.

(16 Mont. 183)

DUIGNAN et al. v. MONTANA CLUB et al. (Supreme Court of Montana. May 13, 1895.) MECHANIC'S LIEN-RIGHTS OF SUBCONTRACTORS APPEAL-OBJECTIONS WAIVED.

1. Subcontractors in the third degree are entitled to file a mechanic's lien under Comp. St. div. 5, § 1391, providing that "all persons furnishing things or doing work shall be considered subcontractors," and as such are entitled to a lien.

2. Objections that the complaint in a lien suit did not recite that the material was used in the building will not be heard first on appeal.

3. The question of nonjoinder of a party defendant cannot be raised on appeal where no demurrer was interposed, and the parties went to trial without objection.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Henry Duignan and others against the Montana Club and others to foreclose a mechanic's lien. From a judgment for plaintiffs, defendants appeal. Remanded.

Thomas C. Bach and Massena Bullard, for appellants. E. A. Carlton, for respondents.

There was a judg The defendant the The appeal is here

DE WITT, J. This action was brought to obtain a judgment for materials furnished one of the defendants, and to foreclose a lien against the clubhouse of the defendant the Montana Club. ment for the plaintiffs. Montana Club appeals. upon the judgment roll only. The Montana Club contracted with D. P. Wortman to erect the building. Wortman contracted with William Harrison, and William Harrison with the Helena Co-operative Granite & Sandstone Company, which company contracted with the plaintiffs for supplying certain stone. The plaintiffs are therefore subcontractors in the third degree. The appellant contends that the lien law of this state does not give a lien to a subcontractor beyond the first degree; that is, beyond the person subcontracting with him who is the original contractor with the owner. It was decided in Merrigan v. English, 9 Mont. 113, 22 Pac. 454 (a decision with which we are satisfied), that a subcontractor has a lien in this state. We refer to that case for a careful and accurate analysis of the history of our legislation upon the subject of mechanics' liens. The fact for decision, however,