Plaintiffs brought their action against McLean to recover $30,000 damages for breach of a written contract regarding certain mining operations. Since the judgment in the circuit court, the defendant McLean died. The present defendants are his legal representatives.
*328Plaintiffs were owners of a mining claim in New Mexico and conveyed to McLean two-thirds of it as a consideration for the contract in question. It was intended by'its terms to secure the development of the claim. It provided that McLean, at his own expense, should cause a shaft to be sunk to “the depth of five hundred feet on the vein of ore cropping out on said claim,” within two years from December 28, 1882. It required the shaft to be at least five by seven feet, with cross-cuts every hundred feet, and contained many details of agreement not necessary to repeat.
The plaintiffs’ evidence at the trial tended to show that McLean sunk the shaft, as agreed, to a depth of 330 feet, but refused to carry it further.
There was evidence for defendant to the effect that the work was stopped at that point because the vein of mineral had given out entirely.
The instructions which the court gave the jury, regarding the points of vital difference between the parties, are as follows, viz.:
“ 3. The court instructs you that it stands admitted that the contract sued upon was executed by the defendant, and that the shaft agreed to be sunk was only sunk to a depth of 330 feet. You will accordingly find a general verdict for the plaintiffs and the measure of plaintiffs’ damages is such sum as you believe from all the evidence it would cost the plaintiffs to sink the shaft in question (with cross-cuts every one hundred feet) from the level of 330 feet to the, depth of five hundred feet as specified in the contract. And in estimating such cost you will make allowance for the necessary expense of procuring and settingup at the mine the necessary machinery for doing the work, deducting from such cost of machinery what you believe from the evidence such machinery would be reasonbly worth, at the mine, when the shaft was completed.
“4., The foregoing rule as to the measure of damages is subject, however, to this qualification, namely: *329if, from the testimony in the case, you believe and find that the sinking of the shaft in question to the depth of five hundred feet would not have led to the development or discovery of any valuable deposits of gold or silver, or other valuable mineral in paying quantities, and would not have benefited the plaintiffs to any greater extent than they were already benefited by sinking the shaft to the depth of 330 feet, then you may assess the plaintiffs’ damages at a mere nominal sum.
“ 5. The burden of showing that the sinking of the shaft to the depth of five hundred feet, with cross-cuts each one hundred feet, would not have led to the development or discovery of any valuable mineral deposits, and would not have benefited'the plaintiffs, rests upon the defendant, and he must show such fact to your reasonable satisfaction. But in determining that issue the court instructs the jury that they may take into consideration the opinions of the various experts who have testified on that subject, and all of the facts and circumstances given in evidence upon which the opinions of such experts or any of them were based.”
Plaintiffs preserved exceptions to these declarations of law.
There was evidence sufficient to support the instructions (leaving out of view the question of the construction of the contract). Some special issues were submitted to the jury, but they need not be discussed.
There was a finding for plaintiffs for nominal damages, from which they have appealed.
Plaintiffs regard this contract as obliging McLean to sink the shaft five hundred feet in any event, irrespective of all intermediate developments. Their entire argument here rests on that assumption. We think the language of the agreement does not reasonably bear that interpretation. Its intent and purpose were to secure a development of the claim in a manner to “subserve the mutual interests of the parties,” and, on the completion of the work, two-thirds of the shaft (as part of *330the entire claim) was to belong to McLean. The latter stipulated to sink the shaft five hundred feet “ on the min of ore, cropping out on said claim.” If, in the progress of the work, all indications of valuable mineral ceased and the vein of ore ran out entirely, there was on obligation on McLean, to proceed further. The question whether the vein of ore had ceased is one of fact to be tried in- the usual way. As the work stopped within the five hundred feet, the burden of proof rested on him to show that the vein of ore (along which the shaft was to proceed) had terminated, for the contract itself asserts the existence of the vein at the beginning. But on establishing that fact the requirements of the contract would be met and there would be no breach whatever.
The measure of damages for failing to continue a mining excavation, such as this, to the point fixed by contract is the reasonable price, or value of the work necessary to complete the shaft to- the agreed depth. But this rule is not applicable, in view of the language and evident purpose of the contract here considered, unless the vein of mineral continued to the point where McLean ceased work.
The instructions given in the circuit court were based on the premise that the contract required the shaft to be sunk five hundred feet in any event. In the main they were, perhaps, more favorable to the plaintiffs’ claim than the views we have expressed. But plaintiffs are entitled to have the case correctly tried. The evidence preserved in the record is not sufficiently satisfactory (in its bearing on the decisive issue of fact above indicated) to justify an affirmance on the theory that plaintiffs were not prejudiced by the' error of the trial court in the construction of the contract. Accordingly, it will be ordered that the judgment be reversed and the •cause remanded unless plaintiffs, during the present *331term, dismiss their appeal, which they may do if so advised.
All the judges concur.[The plaintiffs having elected not to dismiss their appeal, the judgment was accordingly reversed and cause remanded.]