The cause was tried before the court at the June term, 1883, of the district court for Alturas county. Judgment was for the defendant and the complaint dismissed. Plaintiffs moved for a new trial, and the motion was denied. Plaintiffs appeal both from the judgment and from the order denying a new trial.
The case shows that on the fifth day of July, 1881, the plaintiffs were the owners and in the possession of the Eureka mine, situated in Mineral Hill mining district, in Alturas county, in the territory of Idaho. On the said fifth day of July, 1881, the said defendant, by his agent, E. A. Wall, purchased the said mine from the plaintiffs John Synnott and Peter Welch for the sum of $2,200; that on the same day plaintiffs executed and de*125livered to the defendant a good and sufficient deed of conveyance. On the twenty-fourth day of May, 1882, the plaintiffs bring this action and ask the court to declare this deed fraudulent, null, and void, and set it aside and put the plaintiffs again in possession of said property. Plaintiffs aver: 1. That on the third day of July, defendant, by his agents and employees, discovered on said Eureka claim a large and valuable vein or body of ore, from eighteen inches to four feet in thickness, extending about seventy feet continuously along said vein, which rendered said claim of great value, to wit, of the value of $100,-000. Defendant denies. 2. Plaintiffs aver that defendant, by his agents, fraudulently and falsely concealed the said vein or ore body from the plaintiffs. Defendant denies. 3. Plaintiffs aver that defendant, by his agents and servants, falsely and fraudulently represented and stated to these plaintiffs that no other ore body, or vein of ore, existed in said mining claim, except such as were found by and known to these plaintiffs, as shown in their own tunnels as aforesaid, when defendant well knew, etc., that said vein did exist. Defendant denies. 4. Plaintiffs aver that said false and fraudulent representations were made by defendant’s agents and servants to plaintiffs, to induce them to sell said mining claim at far below its real value, to wit, for the sum of $2,300; and that said false and fraudulent representations, so made by the agents and servants of defendant, did induce plaintiffs to believe that no such ore body existed, and that said mining claim was not worth more than $2,200, and that said plaintiffs were thus induced to sell and convey said claim for said last-mentioned sum, when, in fact, said claim was then worth $100,000. Defendant denies. 5. That immediately prior to the discovery of said ore vein or ore body the said plaintiffs had employed one Harry Porter as agent to find them a purchaser for said mining claim, at the price of $2,500, and that, relying upon the honesty of said agent, they agreed to give said Porter ten per cent of said purchase price as a compensation. Defendant denies. 6. That while so employed the said Porter first made the discovery of said vein and ore body aforesaid, which was unknown to plaintiffs. Defendant denies. 7. That said Porter concealed the same from plaintiffs, and surreptitiously, fraudulently, and collusively, and *126for the consideration of $1,000, informed the said defendant of the existence of said large vein or ore body, and undertook and agreed to conceal the same from plaintiffs, and to assist said defendant in the purchase of said Eureka claim at $2,000 or a price greatly below its real value; that by such fraudulent acts of said Porter, as well as the misrepresentations and con-cealments, they were induced, etc. Defendant denies. These are all the material issues raised by the pleadings. Upon substantial affirmative proof of all the material averments of fraud on the part of either "Wall, the agent of defendant, or on the part of Porter, alleged to be their own.agent, plaintiffs claim the right to recover. If they have failed in both, the ease fails. The principal errors assigned are: 1. That the court has failed to find on all the material issues; 2. That the findings are not supported by the evidence; 3. That the findings do not support the judgment.
The first two propositions are so interwoven and intimately connected that they will be discussed together. The first material issue is, Did the defendant, hy his agents and servants, on or about the third day of July, 1881, or before the sale, find a large and valuable vein or body of ore, from eighteen inches to four feet in thickness, extending about seventy feet continuously along said vein, which rendered the mine of great value? In reply to this, the court, in its finding of fact No. 12, say: “The evidence does not show or tend to show that Wall or Porter, or any other person, had discovered or knew of the existence of any vein or lode of ore in place on the Eureka mining claim, other than such as had been found by and was known to Synnott and Welch (the vendors) in their excavations at any. time prior to the sale and execution of the deed.” Objection is made to the use of the words, “the evidence does not show or tend to show.” The fact that they had discovered the vein or lode of ore in question before the sale must be proven by the evidence. If the evidence does not show it, nor tend to show it, then, so far as the purposes of the trial go, they had not discovered it, nor did they know of its existence. No one would fail to understand fully the meaning of the court, which was that neither Wall nor Porter, nor any other person, knew of the existence of the vein or body of ore described. We think the *127finding substantially met the issue presented. The statement of a fact in language such that men of ordinary knowledge, as well as those learned in law, would understand from it that the fact did or did not exist, would seem to be sufficient. The statement is such that it leads us to the inevitable conclusion that the fact alleged did not exist. (See People v. Hagar, 52 Cal. 189; Coveny v. Hale, 49 Cal. 552; Emmal v. Webb, 36 Cal. 204.) The fact itself, however, is positively stated in the last half of the fifteenth finding, which is as follows: “Neither the defendant nor any agent of his had ever discovered or knew ofi the existence of any vein or lode in said claim (except such as Synnott and Welch had exposed by their tunnels) prior to the sale, nor until some days had elapsed after the sale.” This is a statement of fact, pure and simple, and completely meets the issue tendered. Objection is made to the use of the terms “vein or lode of ore in place” and “vein or lode.” The words “vein,” ‘lode,” and “ledge” are used as synonymous terms, in the common parlance of miners, in the laws of Congress, and in the decisions of courts in mining states and territories. Section 2320 of the Revised Laiws of the United States uses the terms as follows: “Veins or lodes of quartz, or other rock, in place, bearing gold, silver,” etc. Section 2322: “Locations made on any vein, lode, or ledge situated on the public domain,” etc. Section 2323: “Where a tunnel is run for the development of a vein or lode.”
Mr. Justice Miller, of the United States circuit court for the district of Colorado, and Justice Hallett, sitting with him, in the case of Stevens v. Williams, 1 McCrary, 480, Fed. Cas. No. 13,413, 1 Morr. Min. Rep. 566, 573, clearly define what a vein, lode, or ledge is, as follows: “In general, it may be said a lode or vein is a body of mineral, or mineral body of rock, within defined boundaries in the general mass of the mountains; nor does the fact that it is occasionally found in the general course of this vein or shoot, in pockets deeper down into the earth, or higher up, affect its character as a vein, lode, or ledge.” This is a perfect definition of the terms “vein,” “lode,” and “ledge,” as understood in mining countries, and also demonstrates the fact that the terms are sjmonymous. That the terms “vein” or “ore body,” as used in the complaint, *128mean, and were intended by the pleader to mean, the same as if the words “vein or lode of ore,” in place of the words “vein or lode,” had been used, is abundantly indicated by the words which follow in the complaint, namely, that the defendant, etc., by his agents and employees, had on third day of July, 1881, discovered on said Eureka mining claim, remote from where these plaintiffs had been at work, a large and valuable vein or body of ore, from eighteen inches to four feet in thickness, extending for about seventy feet continuously along said vein.
The context clearly indicates that the pleader intended to allege that defendant had so discovered a vein or lode of ore in place, and did not mean by that pieces of float ore, however large or small they may have been, which had broken loose and become detached from the mother lode, and floated down the hill, which is commonly, indeed, universally, called “float” in the mining regions.
The meaning of the terms as used is further indicated by the allegation which follows, to wit, the existence of which rendered said mine of great value, to wit, of the sum of $100,000 and upward, of the existence of which said vein or body of ore these plaintiffs were wholly ignorant. The pleader well knew that the discovery of float ore did not render the mine of such great value. The experience of men in mining regions teaches them that the discovery of “float” may lead to the ultimate discovery of a vein or lode of ore in place, which would render the mine valuable. They have also learned by sore experience, and after the expenditure of large sums of money, that it frequently leads to the discovery of nothing of any value.
Further evidence that the pleader considered the words “vein or body of ore” synonymous, and, as used, were intended to mean the same thing, is found in the second clause of the complaint, where the terms are used interchangeably, as they allege that defendant represented that no other ore body or vein of ore existed, and further on in same clause that no such body or vein of ore existed. Further on the pleader again returns to “vein or body of ore,” clearly showing that the pleader himself considered the terms synonymous. These findings of fact are, we think, entirely responsive to the issue, and completely evidence F *129negative the allegation. Are these findings supported by the
Porter testifies that on Sunday before the fourth day of July, 1881, he was on the Eureka claim, and was going up the hill on the trail, and picked up a small piece of float, about half as big as a hen’s egg, and found three or four more very small pieces. “I made no further search until the 5th of July (which was the day of the sale to Wall). I went up with John Gilman. Did not then find any solid vein where it came from. I followed it up (that is, the float) and found one piece for Colonel Wall about six inches through and eight inches long, about fifty feet from the trail. I did not think it made the claim more valuable to any large extent. If I had, I should have bought it myself, as I was in condition so I could have bought it. That was all the workings, and what was found outside, altogether. There was no concealment of this float at all; it laid right there. I showed that float to John Gilman the same afternoon. I was trying to get him to buy it.” This was all the ore found by Wall or Porter, outside the tunnels of the owners, prior to the sale. He says that piece, six by eight, was the largest piece that was found. “It was in open ground, nearly bare, and was in plain sight. These two places where I found this float were about seventy-five feet from the cabin of Synnott and Welch. I think I saw Mr. Welch walking over the same ground where the ore was before the sale.”
Colonel Wall testifies: “The only evidence of a vein that I saw at any time previous to the purchase was small fragments . of broken ore which may have come from that vein or from ány source, nor was there any ore that I saw at any point on the claim that was visible to any person, in place, in the vein or near the vein. In fact, there was no ore discovered in place in the vein at all until after several days’ work had been done with a number of men; merely fragments of ore that.had been detached from the lode and drifted down the hill. This work- was all done after the purchase.”
John Gilman swears he saw a few pieces of weather-beaten' .float; that Porter was with him; picked up a piece and showed • him. “There had been no work done there; saw no excavation whatever; saw no vein at all.”
*130This is substantially all the testimony there is as to defendant, bis agent, Wall, or Porter, knowing anything about ore being found before the sale. It is evident it falls far short of sustaining the allegations as to discovering a vein or body of ore, and abundantly supports the findings twelve and fifteen above quoted.
The second material averment is that defendant, by his agents and servants, fraudulently and falsely concealed the said vein or ore ibody from the plaintiffs. In response to this issue the court finds: “No. 15. No concealment of any material fact concerning said mining claim was ever made by the defendant or by any agent or employee of his. Neither the defendant nor any agent of his had ever discovered or knew of the existence • of any vein or lode in said claim (except such as Synnott and' Welch had exposed by their tunnels) prior to the sale, nor until some days had elapsed after the sale.” This finding is completely responsive to the issue made by the allegation, and is supported by the evidence as already demonstrated, as it needs no argument to show that the defendant or his agents could not conceal a vein or ore body which they had not discovered, and of the existence of which they had no knowledge.
The third averment is that defendant, by his agents and servants, falsely and fraudulently represented to plaintiffs that no other ore body or vein of ore existed in said mining claim, except, etc., when defendant well knew it did so exist. In response the court say: “Finding 14. No false or fraudulent representation concerning the Eureka mining claim was ever made to said vendors, or to anyone else, by the defendant, or by any agent or employee of his.” This'finding being in response to the averment which assumed that defendant had discovered and knew of the existence of the said vein, which assumption not being supported by the evidence, it follows that this finding is so supported.
The first, second, and third averments having been found against the plaintiffs, the fourth averment is no longer an issue; but it is responded to in the seventeenth finding, which states that Synnott and Welch were not induced to rely upon, and did not rely upon any representation, opinion, or act of the defendant, or of any agent of defendant, concerning said mining claim, *131in selling or disposing of the same, or estimating its value or price.
The fifth averment is that, immediately prior to the discovery of said vein or ore body, plaintiffs had employed one Harry Porter as agent to find them a purchaser for $2,500; that they would give him ten per cent of that sum as compensation; that he then discovered the ore body; that he agreed to conceal it for $1,000 from plaintiffs, and did conceal it from them, but showed it to defendant’s agent, Wall, and agreed to assist Wall in purchasing the mine for a price greatly below its real value. The court below having found that no such ore body was ever discovered by Porter, Wall, or anyone else, before the sale, and the evidence conclusively showing that such finding was correct, the whole question of discovery, fraudulent concealment, fraudulent representations concerning it, is finally disposed of. It remains to inquire whether Porter’s receiving the $1,000 from Wall, the agent of defendant, in any way affected the validity of the sale.
The character of the arrangement between Porter and the plaintiffs is thus stated by Synnott and Porter in their testimony. Synnott states that he first told Porter that if he would find a purchaser at $2,500, they would give him ten per cent of the sum. Porter said he was trying to sell the Homestake. When he got through with that he would try to find a purchaser for the Eureka. This was about the 25th of June, 1881. He then comes down to the fifth day of July, 1881, the day on which the sale was made, and narrates the sale and conveyance, as follows : “Wall [agent of defendant] came to us on the fifth day of July and offered us $2,000 for the mine. After some consideration we agreed to take it, and it was arranged we should go to Bullion after supper and make the deed. Then Gilman came to us and offered us $1,800 and one-tenth of the mine, or $2,200 cash. Gilman then told us Porter had made a big find on the Eureka. I said, ‘Where?’ Gilman said, ‘You walk over it’; pointing up the trail. I said I knew better; I did not believe it. In the evening, after supper, we went down to Wall’s office. Porter told Wall that Gilman had again been to see them, and offered them $200 more, and they said they could not *132afford to lose it. Wall then, agreed to give us $2,200. We took it and made the deed.”
Synnott then returns to the arrangement with Porter, and says: “It may have been in June we had tried to sell it. The least we ever offered to sell the mine for was $2,000. Whether that was in May or June I don’t know.” “Q. When and how long was Porter in your employ? A. As I hare stated, it was about the 25th of June; it may have been a few days after that that we spoke to Porter; that would be perhaps ten or twelve days until the sale was consummated. Q. .Was he in your employ until the sale was made? A. We considered so. The sale was made on the 5th of July. Q. Do you say that he continued in your employment that long? A. I have, stated how we employed Porter, and you will have to infer from that. We promised to give Porter ten per cent on $2,500, and Mr. Porter told us he could not get but $1,800. We told him the least we could take was $2,000, and we could not afford to pay him anything out of that. That was the understanding between us until the time of the sale. He was to get nothing out of $2,000. We could not afford to pay him anything. There was no other arrangement. The next thing we knew was, Porter brought Colonel Wall on the ground on the 5th. We did not consider we owed Porter anything out of the $2,200. Never offered him anything, as we got the extra $200 through Gilman. Q. How do you make that out? Who caused you to make the sale? A. I suppose Porter; he made the sale, and we supposed he got the money from Colonel Wall. Q. All that Porter did you considered a gratuity, for which he was entitled to no pay? A. He was entitled to no pay from us.”
Porter, in his testimony, states: “Synnott and Welch gave me a sort of verbal bond if I should sell the property at such a figure they would give me a certain amount. The arrangement was that they should give me all over $2,000 that I could get for the ground. That was in June, 1881; I think about the middle of June. I was to have whatever I could get over $2,000. I was acquainted with the mine and its worldngs, and the showing as to ore. I made efforts to sell the mine under this arrangement. Made a sale to Colonel Wall, the agent for Shaughnessy. The deed was made to Shaughnessy, I believe. Colonel Wall *133went to them about it, and bought it from them; made the trade with them. I went and got Colonel Wall to look at the property. I brought the parties together. I had stated the terms upon which the mine could be bought to Colonel Wall. I took Wall to°see the property, and told him if he bought the property from them I wanted him to respect my option. He agreed to do it, and agreed to give me $1,000 for my option, or one-fourth of the mine. Q. State, now, particularly, what was the agreement upon your part and upon the others in regard to that option or verbal bond'. A. I was to have all I could get over $2,000. They wanted to get $2,000 for the ground. They did not want me to sell the mine at $2,000 and then give me any ten per cent. They wanted $2,000, and if they could get that, they were satisfied, and I could have all over. There was no agreement between us that I should have a fixed per cent on a fixed price.”
This was all the testimony on the matter of the arrangement between Porter and the plaintiffs. This testimony indicates that there may have been, at one time, an arrangement that Porter was to find a purchaser at $2,500, and Porter to have ten per cent thereof, although Porter swears positively that there was not. The evidence was conflicting, and the court below finds that there was such an arrangement, and that afterward said arrangement was changed to what was termed a verbal option that Porter was to get the plaintiffs $2,000, and he to have all he could get over that sum. The precise time at which the first and last of these two arrangements were made is not stated by either Porter or Synnott. Porter testifies that the latter arrangement was made about the 26th of June, and was not changed afterward. Synnott testifies that it might have been May or June. All the talk about this matter occurred before Wall went to look at the mine, and before he had any conference with Porter, as appeared by the evidence. Porter brought the parties, Wall and plaintiffs, together, and they made their own contract; Porter simply having before stated to Wall that their price was $2,000, and the parties made their own trade. The fact that Wall finally paid them $200 more than they had agreed to take does not change the relation between Porter and plaintiffs.
*134It is laid down as the law that if an agent act openly, and with the consent of both owner and purchaser, he may contract for and receive a commission from both. (Finerty v. Fritz, 1 Morr. Min. Rep. 439, and cases cited.) And again, if the extent of the agency be merely to bring the parties together, and does not involve the duty of negotiating for either, the agent is termed a "middleman,” and may contract for and receive commissions from both. (Finerty v. Fritz, 1 Morr. Min. Rep. 440; Stewart v. Mather, 32 Wis. 344; Shepherd v. Hedden, 29 N. J. L. 334; Herman v. Martineau, 1 Wis. 151, 60 Am. Dec. 368.) This is true also if each have agreed to pay the agent a commission, with or without the other’s consent, if his duty is simply to bring the parties together. (Whart. Com. Law Ag., sec. 337; Rupp v. Sampson, 16 Gray, 398, 77 Am. Dec. 416; In re Owens, 7 Ir. R. Eq. 235; affirmed, 7 Ir. R. Eq. 424.)
It is evident from the testimony of Wall, Porter, and Syn-nott, all the parties who had anything to do with the sale and conveyance of the mine on the 5th of July, that the trade was made under the last arrangement, as Synnott states that he .“did not consider that Porter was to have anything from us; we expected he would get his pay from Wall. We never paid him anything; never offered him anything. Porter never demanded anything from plaintiffs. Wall promised to respect Porter’s option. He did so, and paid him the $1,000 agreed upon.” If this arrangement had been reduced to writing, no one would question for a moment the perfect propriety of the arrangement. It would then have been a bond to sell and convey at a fixed price on the part of plaintiffs, and on the part of Porter it would have been an option to purchase at a fixed price. It was precisely what Porter termed it — a verbal option or verbal bond — and, when in writing, a very common method of undertaking to find a purchaser for a mine, or to buy one. Would this option be less proper or less binding upon the parties if verbal instead of in writing? Clearly not. The only danger in such case would be the liability of the vendor to demand more, and the liability of the purchaser to refuse to respect the option, the former of which occurred in this case. What was the obligation of Porter ? It was evidently understood by plaintiffs that Porter would get his pay from Wall. He was at per-*135feet liberty to get all he could aboye $2,000. He could, with perfect propriety, become the purchaser himself.
This whole subject is discussed dearly and at length in case above cited (Finerty v. Fritz). In that case the bond was in . writing. The court say: “The bond in question was one of those ordinary titled bonds so extensively employed in the mining regions of this state [Colorado], by means of which those desiring to speculate in mines before purchasing the same outright, procure from the owners an option to buy, on payment of a stipulated price within a fixed period of time; the obligor binds himself to execute a deed to the obligee on performance of the condition. No obligation is executed by the obligee. If the contract proves advantageous to the obligee, he pays the purchase money and receives a deed, otherwise he suffers the time for performance to lapse.The obligee may contract a sale of the property on his own account, and at any price he can obtain.” In this case Porter might have purchased the mine openly from Synnott and Welch for himself. The evidence clearly shows that Synnott and Welch fixed the price upon their own knowledge of the mine. They had worked upon it over a year; had run four tunnels in different places where they thought the showing good. They had opportunity to know, and believed they did know, more about the mine than any other person. They had been trying to sell it to different persons for some months, and had failed. The highest offer ever made them was that of Gilman, which was $2,200, and that was the day of the sale. The same amount was given them by Wall. It is just as apparent that Wall bought on his own judgment. He might have failed to find a vein, as plaintiffs had done. It is reasonable to suppose that Synnott and Welch had seen the same float themselves (except the larger piece), and did not regard it as indicating that the mine was of any more value on account of it. They manifested no interest in it when informed by Gilman. Synnott said he knew better. When Porter accepted the proposition of plaintiffs to sell for $2,000, with the expressed understanding that he was to have all he could get over that sum, he was then under no obligation to reveal anything he discovered to the plaintiffs. The equities in the case do not seem to be clearly with the plaintiffs, as the *136learned counsel contend. The plaintiffs sold the mine for $2,200, on the 5th of July. On the 7th, two days after, they knew, as Synnott testifies, that Porter was to get the $1,000 from Wall. A few days after that the vein was discovered. The plaintiffs were there and knew all these facts. The defendant proceeded with labor and skill for ten months, employing a number of hands, until he has spent $25,000, including the purchase money. He has sold all the ore taken out by plaintiffs, and all he took out himself in his workings, and realized $2,700. Plaintiffs then bring suit and ask that defendant be required to account to them for this $2,700; that they be allowed to return to defendants the $2,200, and receive a deed for the mine. The cause of justice and good conscience is not apparent.
Judgment affirmed.
Broderick, J., concurred.