McIntosh

This is an action for the rescission, cancellation and setting aside of a mining lease. The plaintiff had judgment and the defendant appeals therefrom, and also from an order denying his motion for a new trial.

No specific term is mentioned in the contract, a cancellation of which is sought herein, but said contract is entitled a “mining lease,” and it is stated that the same is made “for the purpose—mining minerals or gems, and in consideration of the said demise the said lessee does covenant and agree with the said lessor, his heirs or assigns, to pay and deliver a royalty in amount and conditioned as follows: 10 per cent of the net proceeds of any, and all, mining operations upon said property from date of this lease and until such a time as the sum of all the separate payments of royalty shall equal fifteen hundred dollars, at which time royalty shall be fully paid up and free to said lessee for a period of fifteen years from date of this lease, provided that payments shall not exceed six in number and shall be semi-annual and shall begin on or before six months from date of this lease,” etc. The evidence showed, and it is found by the court, that by virtue of said contract…