Menzel

This action was brought by the plaintiff to enforce the payment of a. promissory note for the sum of $2,500, made and delivered on the twenty-eighth day of May, 1903, by the defendants, and payable sixty days after date. The defendant, Chambers, was not served with process and made no appearance. The case was tried before the court, a jury having been waived by the parties, and judgment awarded to the defendant and respondent, Primm. This appeal is from said judgment and the order refusing plaintiff a new trial.

The note which is the foundation of the action was the outcome of a certain agreement in writing, dated the thirteenth day of February, 1903, under the provisions of which the plaintiff, on certain specified terms, agreed to sell certain mining claims to the defendant, Chambers, for the sum of $7,500, of which the sum of $3,500 was to be paid on or before the twenty-fourth day of March, 1903, and the remainder— $4,000—on or before the twenty-fourth day of September, 1903. The agreement provided that Chambers should have immediate possession of said mining claims for the purpose of working, mining and developing the same, and said Chambers agreed to “put two men to work…