I concur in the judgment of affirmance upon the ground that the agreement to convey was not supported by an adequate consideration, and that the contract as pleaded was not, as to the locators of the mining ground, reasonable or just. (Civ. Code, sec. 3391) The first thing to be done was the deposit in escrow of a deed conveying all their title to Martin, and this deed was to be delivered, thereby investing Martin with the complete title and power of alienation, upon the delivery by him to the trustee of the locators of one quarter of the shares of a corporation to be formed. The contract contained no stipulation binding Martin to convey the claims to the corporation, and provided no effective means of binding the corporation to make a thorough development of the ground. On this point it was extremely vague and indefinite. It was not provided that any condition subsequent should be expressed in the deed, and the only condition precedent to its delivery was the issuance to a trustee of the locators of one quarter of the shares of a corporation, with no capital except its stock subscriptions, and with no guaranty that the remaining three fourths of the shares would be subscribed. It is not alleged in the complaint that any definite number of shares in the corporation have been subscribed, and it is entirely consistent with the case as stated that the one quarter of the stock issued to the trustees of the locators is practically all that ever will be issued. Besides this, the contract did not provide that the stock issued to the locators should be issued as fully paid, or unassessable in whole or in part, and the complaint does not allege that it was to be held on conditions in any respect more favorable than those affecting the stock of other subscribers. So that if these locations should now be conveyed to the corporation, as assignee of Martin, the locators would *Page 536 be liable as stockholders for a share of the expense of development exactly proportioned to their interest in the ground — a result utterly at variance with the alleged purpose of the locators in entering into the contract.
Upon this ground, irrespective of others, I concur in the judgment.