Action on a promissory note. Answer, want of consideration. Trial and judgment for the plaintiff. The defendant appeals on the judgment roll.

The court found that the defendant, being a corporation, entered into the following contract with the plaintiff and one Buckman, through its superintendent: —

That said agreement was never ratified by the stockholders of the company; that the plaintiff and Buckman worked the mines described in the contract, and delivered the bullion to said Wheeler, who deposited it with the bankers, and drew on them during the lease to pay the expenses of the mining, including the wages of plaintiff and Buckman and their hired help; that when they ceased work there remained in the hands of said superintendent $3,422.01 of their one half of the proceeds of the mines taken out by them, and that the note sued on was given for that sum of money, instead of delivering to them the money or bullion itself; that the president and secretary of the defendant were authorized, by a resolution of the board of directors of the defendant, to execute the note; that the said board of directors consisted of five members; that one was absent, one voted against the resolution, and three in favor of it; that one of the directors who voted for the resolution was indebted to the plaintiff in the sum of five hundred. dollars on a promissory note, and shortly after the resolution was passed the plaintiff surrendered said note to said director without consideration.

Buckman assigned his interest in the note sued on to the plaintiff before this suit was commenced.

The appellant contends that the agreement above set out was the only consideration for the note; that said contract was a lease of the real estate of the corporation, and as such was void, for the reason that the same was not ratified by the stockholders, as required by the statute of 1880, which provides:—

If the agreement could be construed to be a lease of the real estate of the defendant, it may be conceded that the point made against its validity would be well taken; but we do not regard it as a lease. It is true, the parties so term it in the instrument itself, but that cannot affect its legal construction. As we construe the agreement, it. was one for the working of the mine on shares, and the parties became tenants in common of the products of the mine when taken out. (Bernal v. Hovious, 17 Cal. 545 ; 79 Am. Dec. 147 ; Smyth v. Tankersley, 20 Ala. 212 ; 56 Am. Dec. 193 ; Ponder v. Rhea, 32 Ark. 435 ; Somers v. Joyce, 40 Conn. 592 ; Scott v. Ramsey, 82 Ind. 330 ; Dinehart v. Wilson, 15 Barb. 597 ; Aiken v. Smith, 21 Vt. 172 ; Haywood v. Rogers, 73 N. C. 320 .)

Such a contract does not create the relation of landlord and tenant, but fixes a rule of compensation for services rendered. It is, in all its essential features, a contract for labor to be performed, and to be paid for by a share of the profits realized from such labor. (Civ. Code, sec. 1965; Crowley v. Genessee Mining Co., 55 Cal. 273 ; Gardenhire v. Smith, 39 Ark. 280 ; Jeter v. Penn, 28 La. Ann. 230 ; 26 Am. Rep. 98 ; Adams v. McKesson’s Ex’r, 53 Pa. St. 81; 91 Am. Dec. 183 ; Hay v. Gronable, 34 Pa. St. 9.)

So construing this agreement, it was not within the prohibition of the statute of 1880 above referred to. The plaintiff was the absolute owner of the share of the products of the mine, ascertained and declared by the parties to have been $3,422.01, and the note given by its officers therefor was upon a valid consideration, and binding upon the defendant.

It is further contended that it appears, from the find *559 ings, that one of the directors of the defendant was induced to vote in favor of the resolution authorizing the execution of the note, by the surrender of or agreement to surrender to him his note held by the plaintiff. But the court does not so find, and there is no allegation in the pleadings upon which to base such a contention. It is found that the director voted for the resolution, and that his note was afterward surrendered to him by the plaintiff without consideration, but the transaction is in no way connected with his action as such director, and the finding is wholly outside of any issue made in the pleadings.

Judgment affirmed.

Fox, J., concurred.