Nielson

The complaint is in two counts, and it is made the basis for the recovery from defendants, Gross and McGraw, as mining partners, for work and labor performed as a miner, by plaintiff, for the partnership for a period extending from the tenth day of February, 1908, to the twenty-eighth day of September, 1909. It was also sought to foreclose a laborer’s lien on the property alleged to belong to L. D. Butt, but the court held that no" lien existed, and the correctness of that decision is not questioned on the present appeal. A demurrer was interposed to the amended complaint, but it was overruled.

E. W. McGraw is the only defendant that answered. He admitted that the services were performed and were of the value alleged, and that by virtue of the statutes of the state Gross and he were mining partners, prior to October 26, 1908, and he offered to pay plaintiff for the amount due for his work to that date, but he denied that at any time subsequent to said October 26th defendant Gross and he were mining or other partners. He averred that on October 26, 1908, all work on the mines was definitely abandoned and the mining partnership ended. That thereafter no mining work was done on the…