the relations which existed between Simpson | ties, and then to ascertain the consideration & Co., and McPhee & McGinnity, and their moving from each to the other to sustain mutual rights, liabilities, and obligations, them. It is plain that Simpson & Co. underunder the original contract for the erection took to transfer to the appellants their conof the house, after the assignment of that tract for the erection of the house. It was instrument; second, to determine the interest undoubtedly their intention to vest in Mcwhich remained vested in Simpson & Co. in Phee & McGinnity the right to receive the the contract after the assignment; and, third, full sum of $4,040 upon their performance to inquire what rights were transferred to of the agreement. The consideration of that Young & Savin by the order made by William transfer was the furnishing of the materials Simpson, and what liability was assumed by mentioned, and the assumption by McPhee McPhee & McGinnity by their acceptance. & McGinnity of all the bills which had been The several instruments may be properly incurred, and their agreement to pay the considered in the order in which they were same. This disposed of $2,872 of the conmade. The terms of the agreement between tract price. In addition to transferring the Simpson & Co. and Mrs. Clegg are clear and contract, Simpson & Co. further agreed to easily understood. That agreement was "attend to and build said house." It is conmade March 21, 1882. By its terms Simpson tended by counsel for appellants, with much & Co. undertook to erect and complete a reason, that this was a separate and distinct dwelling-house, in accordance with plans and agreement on their part, the consideration of specifications, which had been agreed upon, which was the payment of the balance of the on or before the 18th day of June next en- contract price by McPhee & McGinnity, after suing, for the sum of $4,040. This sum was paying the bills incurred by them in the comto be paid as the work progressed. If Simp- pletion of the house, or, in the language of son & Co. completed the house, they were the agreement, "the balance of the contract entitled to receive the entire contract price. price* *after bills are paid." By Performance of the contract was a condition this construction of the contract, Simpson & precedent to payment. This contract was Co. would be entitled to the net profits of the not performed by Simpson & Co. Within a undertaking, and nothing more. week after it was made it was assigned by them to appellants. The first serious ques-considered tion in this case arises upon the construction of the agreement accompanying this assignment. This question will now be considered. In the construction of a written instrument, the first point is to ascertain what the parties themselves meant and understood. 2 Pars. Cont. 494. The purpose of the interpretation and construction of a contract is to give effect to the intention of the parties. Their intention must first be sought in the instrument itself. The language used by the parties is the best evidence of their intention. This is elementary. It is equally clear that, to understand the meaning of the parties, the contract is to be considered in its entirety. "Every contract ought to be so construed that no clause, sentence, or word shall be superfluous, void, or insignificant." 1 Add. Cont. 285. Read in the light of these principles, what does the contract of assignment mean? The language of the instrument is as follows: "For and in consideration of McPhee & McGinnity furnishing to me all of the lumber, sash, and doors for Mrs. G. H. Clegg's dwelling, * ** ** amounting to about $700 as per bill, and they assuming the following subcontract bills as follows, [subcontract bills,] we hereby transfer to them our contract on said house, they paying the above bills, and we agreeing to attend to and build said house, in consideration of them paying to us the balance of our contract price with Mr. and Mrs. G. H. Clegg after bills are paid." To ascertain the meaning of this agreement, it is essential, first to discover and define the mutual promises of the par Thus far only the instrument itself has been If, however, the intent and meaning of the parties is not clearly disclosed by the language of the contract, then competent evidence bearing upon the construction given to the instrument by the parties themselves, by their acts and conduct in its performance, may be considered. 1 Greenl. Ev. §§ 277, 288; 1 Add. Cont. 293: Goddard v. Foster, 17 Wall. 123, 142; Coal Co. v. Tierney, 5 Colo. 583; Haldeman v. Chambers, 19 Tex. 1; Emery v. Webster, 42 Me. 204. In Knight v. Worsted Co., 2 Cush. 271, the rule is stated as follows: "Parol evidence, though not admissible to add to or vary the terms of a written contract, is admissible to prove facts, and circumstances as to the relations of the parties, and the nature, quality, and condition of the property which is the subject of the contract, and also the acts of the parties, at and subsequent thereto, for the purpose of showing their understanding of its terms." The acts and conduct of the parties, as shown by the evidence of both McPhee and William Simpson, tended to show that their understanding of the agreement was in perfect accord with the construction contended for by appellants. It appears that immediately after the execution of the assignment the appellants undertook the performance of the contract, and that William Simpson was employed to superintend the work; that his brother John acted as time-keeper; that appellants purchased all materials, employed all labor, and in fact did everything which was essential to the building and completion of the house. This evidence tended to show that the undertaking of Simpson & Co. "to attend to and build the house" meant that they were to for $100 on a claim, the property of C., which does not allege what work was to be done, nor when it was done, nor that the contract was performed and accepted by C., is bad on demurrer. 2. Where the complaint alleges that one K. has an interest in the claim, but does not connect him in any way with the contract, it should be dismissed as to K. superintend the work, and nothing more; | tiffs contracted with one C. to do assessment work and that they were to receive, not all the contract price remaining after payment of the sums mentioned in the instrument, but the balance after all bills were paid, or, in other words, the "net profits or proceeds. Under such construction of the contract, all that Simpson could transfer to appellees was his interest in the contract, as measured by the "net profits or proceeds" after its full performance. 3. Where a complaint alleges a contract to do a Driscoll and J. C. Keegan, for appellees. But we must not overlook the rights of appellees. When one party is allowed to produce evidence aliunde to aid in determining the meaning of a written agreement susceptible of different constructions, the other REED, C. Appellees (plaintiffs below) party must be allowed the like privilege. It brought suit against appellants for the sum of is therefore improper that we should further $100, claiming the sum to have been due undiscuss the effect of the testimony admitted der contract for work done on the mining on the trial, and which, though properly ad- claim called the "Silver Wing," in the year mitted, was in effect afterwards excluded by 1882. It appears the complaint was filed the action of the court in directing a verdict. February 1, 1883, to which a demurrer was It may be that, by such action of the court, interposed and sustained. On March 11th appellees were misled as to the necessity or an amended complaint was filed, or, in the propriety of offering like evidence. It fol-language of the record, "the complaint was lows that, to entitle appellees to recover, it will be necessary for them to allege and prove that there were net profits arising from the construction of the house, unless by competent evidence a different construction of the contract shall be established. It is not alleged in the complaint that any profits were realized upon the construction of the building. It is simply stated that, after payment of the specific sums mentioned in the assignment, and the amount due to Simpson for labor, there remained a certain sum, to ten-fourteenths of which appellees were entitled under the order. These allegations are in no sense tantamount to an allegation that net profits were realized. There is nothing in the answer which could be interpreted to be an admission that there were net profits. On the contrary, it was expressly denied that any net profits were realized. For these reasons the instruction of the court directing a verdict was error. The judgment is reversed, and the cause remanded for a new trial, with leave to the parties to amend their pleadings in accordance with this opinion refiled." Whether there was an amended complaint filed, or whether the original, to which a demurrer had been sustained, was refiled, we are unable to determine from the record, but should judge the latter was the fact. In the abstract it is said: "Complaint filed Feb. 1, 1883, and alleges," etc. If any other or amended complaint was filed, we are not informed of the allegations it contained, nor wherein, if in any respect, it differed from the original; so we must presume that the complaint set out was the one upon which trial was had. It appears that a second demurrer was filed to the complaint, overruled, and exception taken. If the second demurrer was interposed to the complaint contained in the record, the court erred in overruling it. Complaint states no cause of action, but says "that the plaintiffs were miners, and as such contracted with J. C. Calhoun, in 1882, to do an assessment work for him on the Silver Wing mining claim for $100, for the year 1882, which mining claim was the property of the said Calhoun." though it is said the parties contracted, etc., there is no allegation as to what they contracted to do or how much work was to be PER CURIAM. For the reasons stated in done or when it was to be done. There is an the foregoing opinion of Commissioner PAT- attempted allegation of performance, but no TISON the judgment is reversed, and the cause | statement when the contract was performed, remanded for a new trial, with leave to amend the pleadings. REED and RICHMOND, CC., concur. HELM, C. J. I think the judgment of the superior court should be affirmed, and therefore dissent from the conclusions reached by the commission, and adopted by the other members of the court. (13 Colo: 103) CALHOUN et al. v. GIRARDINE et al. (Supreme Court of Colorado. June 17, 1889.) ASSUMPSIT-COMPLAINT. 1. A complaint for a sum due on a contract for work on a mining claim, which alleges that plain Al nor of its value or acceptance by the defendants. The complaint lacks almost every maaction, and the demurrer should for that reaterial allegation necessary to show a cause of son have been sustained. There is nothing in the complaint that could show that Kilbourn was in any way connected with the contract or supposed cause of action. It says "the said J. M. Kilbourn has, or pretends to have, some interest or claim in said mining claim or premises other than a lien claim for work, the nature of which these plaintiffs are unable to discover," and asks that he be brought in as a party defendant. The alle gation in regard to Kilbourn is too indefi- | to filing the complaint and answer, appellants nite, and should not have been allowed to asked leave to amend their answer, so as to stand, nor should Kilbourn, on such an alle- correctly describe the area in conflict. Leave gation, have been made a defendant. We do to so amend was granted, upon condition that not find it necessary to examine at any length appellants pay all costs accruing up to the other errors, but will say that there was no tes-time of filing the motion for such leave. The timony in support of the complaint. It was cause was tried by a jury, and verdict renon a contract to do a certain job of work as dered in favor of appellees. Many excepa whole, (although what was to be done is tions were taken during the progress of the not stated definitely,) for a lump sum of trial to the admission and rejection of evi$100. The testimony was for work done by dence, and to the giving and refusing of inthe day, at $5 per day. Plaintiff Girardine, structions. After verdict a motion for a in his testimony, says: "The contract was new trial was interposed, and, being overmade by Mr. Clinton and myself with the de- | ruled, judgment was duly entered. fendant Calhoun. Clinton and I were part- W. H. Gabbert and Story & Stevens, for ners. We did not agree to do any certain appellants. Bell, Goudy & Costigan, for amount of work, but were to do ten days' appellees. work apiece." The testimony does not show that that was done. There was no testimony connecting Kilbourn in any manner with the transaction. He swore he had no interest whatever. The jury found a general verdict against both defendants for $100, and costs. The judgment entered upon the verdict was for a lien upon the mine, and, if found neces-ants, except upon condition that they were sary, for an execution against Calhoun only. The judgment should be reversed. RICHMOND, C., (after stating the facts as above.) The first error complained of to which our attention is directed is that the district court refused appellants' leave to so amend their answer as to correctly describe the area in conflict between the two claim to pay all costs accruing up to the time of filing the motion for such leave. Under section 78 of the Code, it is provided that "the court may on motion, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding." It does not appear from the record that there was such an abuse of the discretionary power given the court by this statute as warrants a reversal. Another assignment of error which may here be considered is that the court erred in failing to state in writing the grounds upon which it refused to sustain the motion for a new trial. It is true that it was the duty of the court to assign its reasons in 1. Under Code Colo. $ 78, providing that "the court may on motion, in furtherance of justice, and on such terms as may be proper, amend any plead-writing for overruling the motion, but this ing," etc., it is not an abuse of discretion to re- provision of the statute was directory only. quire, as a condition of granting defendants' mo- Gomer v. Chaffe, 5 Colo. 386, and cases cited. tion to amend the answer, that they pay the costs up to that time. 2. The statute making it the duty of the court to state in writing the grounds upon which it refuses a motion for a new trial is directory merely. 3. Each instruction must be construed in connection with the entire charge, and if, considering the charge as a whole, it appears that the jury were not improperly advised or misled as to any material point, the judgment will not be reversed. 4. In an action to determine adverse mining claims, where there was no question of abandon ment in the case, it was not error to refuse an instruction designed to call the jury's attention to a matter of abandonment. 5. Evidence having been introduced to establish the existence of a location or discovery notice, the location certificates, original and amended, were properly admitted for consideration in the same connection. 6. No objection having been taken to the admission in evidence of a certified copy of a deed instead of the original, its admission cannot be urged as error on appeal. Our attention is next directed to errors 2 and 4, relating to similar instructions given by the court. The principal objection to the instructions given is that by said instructions the jury were not advised that the appellees should have complied with the requirements of the statute by posting at the point of discovery on the surface a plain sign or notice containing the name of the lode, the name of the locator, and date of discov ery. The view of this court is that, in construing a charge to the jury, each instruction should be construed in connection with the entire charge, and if, considering it as a whole, the court is satisfied that the jury were not improperly advised as to any material points in the case, and that, reading each instruction in connection with the others, they were not misled, the judgment should not be reversed for erroneous charge. Finerty v. Fritz, 6 Colo. 137; Behymere v. Cook, 5 Colo. 395. This principal objection to the instructions was thoroughly covered by instruction 5, in which the court say: "One of the acts required by the statute to be performed before filing the location certificate of * * * a mining claim is to post at the point of dis- not admissible is that no location or discovery notice had been erected by the Crystal claimants or their grantors prior to the time when the several certificates were filed for record. We do not think these objections well taken, because the fact exists that there was proof of the erection of the location or discovery notice, and this point was submitted directly to the consideration of the jury, their attention being explicitly called to the fact that the law exacted such notice; and, evidence having been introduced to establish the existence of such notice, it was proper that the location certificates, original and amended, should be admitted for consideration by the jury in connection therewith. The next objection discussed by appellants is the error of the court in permitting appellees to introduce in evidence a certified copy of a deed from C. E. Davis to John Mitchell, on the ground that no proof of the loss of the original had been made. In the first place, the statute does not require proof that the original deed has been lost. It is sufficient if affidavit be made that the original is not in affiant's "possession or power to produce." But, secondly, it is sufficient to say that no objection was taken to the ruling of the court allowing the certified copy of the deed to be introduced in evidence. We are satisfied that the jury were not improperly The objections urged to instruction No. 3 advised as to any of the material points in are that the jury might infer that the loca- the case, and that in considering the instruction of the Crystal lode might date either tions they could not have been misled. The from the time it was originally located by one jury were correctly charged upon the law, the Dunlap, or from the time of the entry there-evidence sufficiently supports their verdict, on by Davis. We do not think that this ob- and we think the judgment should be afjection is well taken, for the reason that said firmed. instruction must be considered and read in conjunction with the rest of the charge, and, when so considered, no such inference could properly be drawn. We think there was no error in refusing to give instruction No. 2, asked for by appellants. Appellants argue that the purpose of said instruction was to have the jury determine which of the parties to the action claimed through a location, wherein a proper discovery notice was erected in the first instance. But the object of this instruction, as thus stated, was fully covered by instruction No. 5, given to the jury. The refusal to give instruction No. 3, asked by defendants, is said to be error. The object of this instruction, as appellants argue, was a desire to call the attention of the jury to the fact of an abandonment of certain portions of the land claimed. The question of abandonment did not exist in this case; no proof was introduced or offered upon this point; no question was raised by the pleadings or evidence; therefore the instruction was properly refused. Appellants next argue assignments of error numbered 13, 14, 15, 16, and 18. They say that these assignments should be considered together, as they go to the admissibility of the original and the two amended location certificates of the Crystal lode. The reason assigned why these location certificates were REED and PATTISON, CC., concur. PER CURIAM. For the reasons stated in the foregoing opinion the judgment is affirmed. (13 Colo. 105) THOMAS et al. v. CHISHOLM et al. (Supreme Court of Colorado. June 17, 1889.) MINES AND MINING-CORPORATIONS. 1. Rev. St. U. S. § 2319, provides that mineral lands may be occupied and purchased "by citizens of the United States, and those who have declared their intention to become such, under regulocal customs or rules of miners," etc. Section lations prescribed by law, and according to the 2321 provides for pro.. of citizenship in the case of "a corporation oranged under the laws of the United States, or of any state or territory thereof, by filing a certified copy of the charter, "etc. Section 2325, relating to the manner and conditions of obtaining a patent for a mining claim, provides that "any person, association, or corporation authorized to locate a claim under this chapter" may file an application, etc. Held, that a corporation, all of whose members are citizens of the United States, is competent to locate a mining claim. Following McKinley v. Wheeler, 9 Sup. Ct. Rep. 68. 2. Defendants in a suit to determine an adverse mining claim, who base their title upon an entry and location by a corporation, must, before they corporation was organized under the laws of the can obtain an affirmative judgment, aver that the United States, or of some state or territory there of, and that its members were citizens of the the Revised Statutes must be held not to preUnited States, individually competent to make clude a private corporation formed under the such location. Since act Cong. March 3, 1881, amending Rev. St. U. S. § 2326, both parties to adlaws of the state, whose members are citiverse proceedings are to be regarded as actors, and a defendant cannot rely upon the weakness of the plaintiff's title. Error to district court, Chaffee county. Action to determine adverse mining claim, brought by Edwin E. Thomas, Cyrus W. Pusher, and John Taylor against Robert Chisholm, Mary J. Riggins, H. E. Chapman, and John P. Hudgent. Verdict and judgment for defendants, and plaintiffs bring er ror. P. J. Caston, for plaintiffs in error. H. W. Hobson and M. G. Cage, for defendants in error. zens of the United States, from locating a mining claim on the public lands of the United States." It is quite unnecessary to repeat, as it would be quite impossible to improve upon, the reasoning by which the learned jurist arrives at the conclusion above stated. Defendants in the case at bar, having recovered a general verdict in their favor, the judgment thereon must be reversed, unless the title of defendants to the ground in controversy was legally established according to the act of congress of March 3, 1881, amending section 2326, Rev. St. U.S. Since that amendment both parties in adverse proceedings are to be regarded as actors, and a ELLIOTT, J. The parties to this action defendant cannot rely upon the weakness of occupied the same positions as plaintiffs and the plaintiff's title, as in ordinary ejectment defendants in the court below as in this cases. Consequently, in this action, defendcourt. Defendants having applied for a pat-ants could not recover a valid verdict and ent to a certain mining claim, known as the judgment in their own favor without showTecumseh Lode," plaintiffs filed their ad- ing compliance with the requirements of the verse claim thereto, and commenced this ac- statutes, state and federal, such as would ention, claiming the same premises under the title them to a patent from the United States. name of the "Starlight Lode." The defend- McGinnis v Egbert, 8 Colo. 41, 5 Pac. Rep. ants based their title upon a prior location 652; Becker v Pugh, 9 Colo. 589, 13 Pac. made by one Joseph Hudson and the Kansas Rep. 906; Manning v. Strehlow, 11 Colo. City Mining & Smelting Company. The tes- 451, 18 Pac. Rep. 625. It follows, theretimony tended to show that said smelting fore, that defendants, basing their title in company was a corporation organized under part upon an entry and location by a corpothe laws of the state of Colorado; but the ration, must, before they are entitled to such averments of the answer do not show the or- a verdict and judgment as they obtained, ganization to have been either an associa- aver that the corporation was organized untion of persons unincorporated, or a corpo-der the laws of the United States, or of some ration organized under the laws of the United state or territory thereof, and that the menStates, or of any state or territory thereof; bers of such corporation were citizens of the nor is the character, capacity, or citizenship United States, and severally and individually of the organization, or of any of its constitu- qualified and competent to make the location. ent members, or of Joseph Hudson, in any As to what might amount to prima facie manner set forth in the answer. The ver-proof of citizenship in a case of this kind, in dict and judgment were in favor of the defendants, and plaintiffs bring the case to this court by writ of error. view of section 2321, Rev. St. U. S., we intimate no opinion. McKinley v Wheeler, supra; Lee Doon v. Tesh, 68 Cal. 43, 6 Pac. The principal question submitted for our Rep. 97, and 8 Pac. Rep. 621; Mining Co. v. determination is, can a corporation organized Mining Co., 1 Fed. Rep. 522. The allegaunder the laws of the United States, or some tions of defendants' answer were defective state or territory thereof, make a valid loca- in the necessary averments as to the organition of a mining claim? At the time of the zation of the corporation, and the citizenship submission of this cause in this court there of the members thereof. The certificate of had not been an authoritative determination incorporation offered in evidence by defendof this question; but we regard the opinion ants should not have been received over recently delivered by the supreme court of plaintiffs' objection, in the absence of proper the United States in the case of McKinley v. averments in the answer. The objection to Wheeler, 9 Sup. Ct. Rep. 638, as decisive of the capacity of the corporation under whom the question. In that case the plaintiff, defendants claimed title to make a valid loMcKinley, based his title in part upon a location is not raised for the first time in this cation made by a corporation, all the mem-court, but was made and relied upon at the bers of which were citizens of the United trial substantially, though not precisely, as States, and were severally and individually here considered. Under the authorities the qualified and competent to enter upon the objection was well taken, and it was error to public domain, and acquire title to mineral overrule it. O'Reilly v. Campbell, 116 U.S. lands upon it by discovery and location. The 418, 6 Sup. Ct. Rep. 421; Jackson v. Dines, complaint showed these facts. The defend- 12 Colo. ante, 918. The judgment of ants demurred to the complaint on the ground the district court is reversed, and the cause that the corporation could not make a valid remanded, with leave to the parties to amend location. Mr. Justice FIELD, delivering the their pleadings, and for further proceedings opinion of the court, says: "Section 2319 of in accordance with this opinion. |