fendants' rights, if they have any, must be saved on the ground that they have a cross-vein which is excepted out of plaintiff's grant, and not on the ground of a prior location. The jury were instructed, in substance, that the crossing of lodes does not mean the crossing of two patents, but the actual crossing of the two veins themselves; and, further, that if they should find from the evidence that there is such an actual crossing, then the defendants are entitled to their own vein within the conflicting area of the two patents through the space of intersection; but that such a crossing would not entitle them to leave their own patent and follow the Lone Tree lode. They were also further instructed that, if they should find there was such a crossing, to render a special verdict to that effect, specifying the point of crossing. These instructions were in substantial conformity to the views of this court in the two opinions above cited. As the jury did not return such special verdict, specifying the point of crossing, we must assume that in their judgment the evidence did not warrant such a finding. Had the jury found that there was an actual crossing, and rendered a verdict accordingly, the judgment of the court would doubtless have been such as to protect the defendants in working their cross-vein in accordance with the law as heretofore laid down by this court. As the verdict was general for the plaintiff, we see no error in the judgment, and it is accordingly affirmed.

1. Where two veins unite on the dip the oldest location holds. Champion Co. v. Cons. Wyoming Co., 16 M. R. 145.

2. A lode is whatever the miner can follow and find ore. McDonald, 29 Pac. 98.

Burke v.

3. Instance of contract and conveyance settling cross-lode rights. Coffey v. Emigh, 25 Pac. 83; 15 Colo. 184.

LEWIS W. SMITH V. RICHARD J. BOLLES.

(132 United States, 125; 10 S. C. Rep. 39. Supreme Court, 1889.)

On action for deceit. In an action to recover damages which the plaintiff has suffered by reason of the purchase of stock in a corporation, which he was induced to purchase on the faith of false and fraudulent representations made by the defendant, the measure of damages is the loss which the plaintiff sustained by reason of those representations-such as the money which he paid out, and interest, and all outlays legitimately attributable to the defendant's fraudulent conduct; but it does not include the expected fruits of an unrealized speculation.

'Remote Profits. In applying the general rule that "the damage to be recovered must always be the natural and proximate consequence of the act complained of," those results are to be considered proximate which the wrongdoer, from his position, must have contemplated as the probable consequence of his fraud or breach of contract.

In error to the Circuit Court of the United States for the Northern District of Ohio.

Richard J. Bolles filed his petition against Lewis W. Smith on the 21st day of February, 1884, in the Circuit Court of the United States for the Northern District of Ohio, to recover damages for alleged fraudulent representations in the sale of shares of mining stock, in place of which an amended petition was substituted on the 2d day of March, 1886, by leave of court. The amended petition sets up five causes of action: First. That in the fall of 1879 defendant and one Joseph W. Haskins entered into a fraudulent combination to form an incorporated mining company, based upon alleged mining property in the territory of Arizona, and for the alleged purpose of mining silver ore therefrom, and milling the same for market. That the title to the property was claimed to be in Haskins. That Haskins and others organized said corporation under the laws of New York, by the name of "The Irene Mill & Mining Company," with a capital of $2,000,000, divided into 100,000 shares of $20 each. That Haskins took the whole of the stock, and paid for the same by transferring to the company Tucker v. Parks, 7 Colo. 62.

the alleged mining property, and apparently for the sum of $2,000,000. That Haskins and defendant then represented that 60,000 shares of said stock were issued to or paid for by Haskins, and were deposited with the treasurer of the company to be sold to subscribers and purchasers, and the proceeds to be applied to the construction of a stamp-mill, to be connected with the supposed mining property, and for the purpose of further sinking the shaft and tunnel then in progress. That the defendant had, in connection with Haskins, some interest in the stock, the extent of which was then and is still unknown to plaintiff. That plaintiff was wholly ignorant of the value of the stock, and of the mining property on which it was supposed to be based, never having dealt in such stock or property. That in the month of February, 1880, the defendant applied to him to buy and subscribe for some of the stock, stating that he was interested in it, and that, before acquiring an interest, he had learned from Haskins the enormous value of the property, and to satisfy himself had gone to Arizona, and thoroughly examined it. That he then represented to plaintiff a variety of facts as existing in respect to the mine, making it of great value, which representations are set forth in detail; and that, having known the defendant for several years, and believing him to be a truthful and honest man, and without knowledge or suspicion that said representations were untrue, but believing and relying on the same, the plaintiff had, at the request of the defendant, in the month of February, 1880, agreed to buy of the defendant 4,000 shares of the stock, at $1.50 per share, which contract was completed in the month of March, 1880, by the payment in full of the purchase price, to wit, $6,000, to one H. J. Davis, who claimed to act as treasurer of the company, and from whom the plaintiff received certificates for the stock. Plaintiff then alleged that said representations were each and all false and fraudulent, specifically denying the truth of each of them, and averring that "said stock and mining property was then, and still is, wholly worthless, and that had the same been as represented by defendant it would have been worth at least ten dollars per share, and so plaintiff says that by reason of the premises he has sus

Second. That

tained damages to the amount of $40,000." defendant made similar false and fraudulent representations to John H. Bolles, by which the latter was induced to purchase 2,000 shares of the stock at the price of $1.50 per share, and was, by reason of the premises, damaged to the extent of $6,000; and that John H. Bolles had transferred his claim to the plaintiff, who was entitled to recover of defendant said sum. Third. That defendant made similar false and fraudulent representations to L. W. Marsteller, who was thereby induced to purchase 800 shares of said stock, at the price of $2 per share, and was damaged by reason of the premises to the extent of $2,000, and had transferred his claim to the plaintiff, who was therefore entitled to recover said sum of the defendant. Fourth. That the defendant had made similar false and fraudulent representations to Mrs. Mary Manchester, and induced her, in reliance thereon, to purchase 225 shares of the stock, at a cost (according to the original petition) of $450, and she had incurred damages thereby to the extent of $1,500. That this claim had been assigned to the plaintiff, who was entitled to recover said sum of the defendant. Fifth. That defendant made similar false and fraudulent representations to one John Van Gassbeck, who was induced thereby to purchase 2,500 shares of the stock at $2 per share, making $5,000, which he had paid to the defendant, and he was by reason of the premises damaged to the extent of $10,000; and that Van Gassbeck had transferred this claim to the plaintiff, whereby the latter was entitled to recover said sum of the defendant.

Plaintiff further averred that the aggregate of said damages amounted to $60,500, for which he prayed judgment.

Defendant answered plaintiff's petition, admitting the incorporation and organization of the "Irene Mill & Mining Company," but denying all and singular the remaining allegations of the petition, and further set up affirmatively the statute of limitations.

The second and fourth causes of action, as set forth in the original petition, founded on the claims of John H. Bolles and Mary Manchester, sought merely a rescission of the contracts, and to recover back all the money they had

VOL. XVI-11

respectively paid for shares of stock; but by the amended petition their causes of action were changed to counts for the recovery of damages resulting to said John H. and Mary, from the alleged false and fraudulent representations The cause was tried by a jury, and resulted in a verdict for the plaintiff, assessing his damages at the sum of $8,140, upon which, after a motion for a new trial had been made by the defendant, and overruled, judgment was rendered and the cause was then brought here on writ of error.

W. W. BOYNTON, J. C. HALE and E. H. FITCH, for plaintiff in error.

E. J. ESTEP, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

The bill of exceptions states that the court charged the jury, "as to the law by which the jury were to be gov erned in the assessment of damages under the issues made in the case," that "the measure of recovery is generally the difference between the contract price and the reasonable market value, if the property had been as represented to be, or in case the property or stock is entirely worthless, then its value is what it would have been worth if it had been as represented by the defendant, and as may be shown in the evidence before you."

In this there was error. The measure of damages was not the difference between the contract price and the reasonable market value if the property had been as represented to be, even if the stock had been worth the price paid for it; nor, if the stock were worthless, could the plaintiff have recovered the value it would have had if the property had been equal to the representations. What the plaintiff might have gained is not the question, but what he had lost by being deceived into the purchase. The suit was not brought for breach of contract. The gist of the action was that the plaintiff was fraudulently induced by the defendant to purchase stock upon the faith of certain false