Opinion of the Court-Hawley, C. J. ores taken from the battery samples at said mill." It is alleged that the ascertained value of said ores, by the assays taken from the battery samples, was the sum of one hundred and thirty-four dollars per ton. The defendant, in his answer, alleges that "he was to pay sixty-five per cent. of the battery sample assay, less six dollars and fifty cents for working, and less discount on the bullion produced." He avers that he reduced twenty tons of ore and "admits that battery samples of such workings were made," but denies that they were duly or properly made, and says "that either by fraud of plaintiff Cizovich, or mistake by defendant's employes, they failed to show the assay value of such ores." He admits that such assays apparently showed the value of such ores or matter to be one hundred and thirty-four dollars per ton, but avers that the real value was not more than fourteen dollars and sixty cents per ton." He also avers "that the entire product of such ore, by him carefully and properly worked at his mill, was no more than one hundred and eighty dollars." * * * 66 The cause was tried before the court without a jury and judgment was rendered in favor of plaintiffs for two hundred and sixty-five dollars, or its equivalent in gold and silver bullion. 1. We are of opinion that the averments in the answer raised an issue as to the terms of the contract and also as to the correctness of the assays which were taken from the battery samples. 2. It was argued by plaintiffs that the assays taken from the battery samples were the only tests provided in the contract for determining the value of the ore, and hence that the court erred in admitting any other testimony for the purpose of establishing its value. By the terms of the contract the assays from the battery samples were to be taken as a means of ascertaining the value of the ore; but this was, of course, upon the understanding of the parties that the assays would be correct. It never was the intention of the parties that they should be bound by the assays VOL. XVIII-18 Opinion of the Court-Hawley, C. J. if they did not fairly represent the value of the ore. The language of the averments in the pleadings, when interpreted with reference to the intention of the parties, is not susceptible of such a construction. It was the true value of the pulp from the battery that was to be taken as a guide for the settlement. Contracts of this character are presumed to be made with a view of protecting both parties. The owner of the ore is guaranteed a certain per cent. of its true value, which secures to him a fair return. If the mill-owner is careful, and works the ore closely, he may be able to save more than the per cent. agreed upon, and thus secure to himself an additional profit for the working of the ore. He also avoids the necessity of a clean-up for every small quantity of custom ore that he may work, and is thereby enabled to crush and reduce the ore at less expense than if the contract called for the bullion produced by the ore. If the assays taken from the battery samples are correct, the parties are protected and bound by them whether the clean-up, if made, amounts to the percentage agreed upon or not. But if the assays are not correct the parties are not bound by them, and may introduce any competent testimony tending to establish the true value of the ore. 3. Upon the trial plaintiffs introduced two assays taken from the battery samples-one taken under the direction of the defendant of one hundred and thirty-four dollars and eighty-two cents per ton, the other taken under the direction of the plaintiff Cizovich, of one hundred and twentyeight dollars per ton. About half the ore had passed through the battery when the assay of one hundred and thirty-four dollars and eighty-two cents was obtained. It is argued in behalf of plaintiffs that defendant was negligent in not then taking the necessary steps to secure himself by having other samples taken from the battery, and seeing that proper and correct assays were made therefrom, or in not refusing to reduce the balance of the ore unless the mistake in the assays taken was corrected in some manner that might be agreed upon between the parties. It is also Opinion of the Court-Hawley, C. J. claimed that the testimony introduced on the part of the defendant was incompetent to prove the real value of the ore, or to show that the assay value of the ore was less than shown by the assays taken from the battery samples. It would have been proper for the defendant to have pursued the course suggested, but it was not necessarily the only course to be pursued in order to ascertain the facts. The defendant seems to have used due diligence in notifying plaintiff's that something was wrong about the assays, and in endeavoring to find out what the true value of the ore He testified that after he ascertained from the assayer what the battery samples assayed he asked plaintiff Phipps for time to settle, "because the amalgam produced by the ore showed that the ore was not of the value that the assay of the battery samples showed." When he showed plaintiff Cizovich the assay, he told him "it was too high." Phipps said, "Hully informed me that the assays went one hundred and thirty-four dollars per ton, and he then expressed some surprise that it went so high, and asked whether I was not surprised; he also said that, if we were not in a hurry, he would like to have us wait until he could make a clean-up before making a settlement with us." It does not appear that either of the plaintiffs objected to waiting for the "clean-up." Neither of them requested that any other assays from the battery samples should be made. Both parties had an equal opportunity to correct the mistake in the battery sample assays, and to pursue any course necessary to preserve their respective rights. After the assay of one hundred and thirty-four dollars and eighty-two cents was made defendant took a pulp assay from the tank "because evidences were cropping out that the battery assays were too high." He testified that he told Cizovich after he received the battery sample assays that he did not believe that the ore was of any such value, because the gold in the ore, as shown in the battery sample assays, predominated in so much greater proportion than the gold in the bullion which the ore produced, as shown by the assays taken from the tank." The pulp from the Opinion of the Court-Hawley, C. J. tank assayed sixteen dollars and eighty-nine cents per ton. The defendant worked two thousand seven hundred pounds of ore belonging to himself with plaintiffs' ore, and the entire clean-up at the mill, of all the ore, only produced a bar of bullion of the value of two hundred and sixty-five dollars. Bossell testified on behalf of defendant that he was an amalgamator by occupation, of fourteen years experience; that he had charge of the working and reduction of the ore; that it was properly worked; that he took as fair a sample as he could from the tanks; that the amalgam out of the pans "represented the entire product of the ore which plaintiffs sent to the mill;" that he "did not intend to clean up, but the difference between the assays from the battery and the assay from the tank was so peculiar that Mr. Hully told me to clean up ;" that the sample taken "from the tank had the results of no other ore except plaintiffs';" and that he did not think it possible that they "could have made a loss in milling this ore of the difference between two hundred and sixty-five dollars and two thousand dol lars." This testimony was competent, as it tended to show that the assays from the battery samples were not correct; and also tended to show what the true value of the ore was. It is claimed that the court erred in allowing testimony as to the value of ore at other places in the St. John mine than that from which plaintiffs' ore was taken. We deem it unncessary to decide whether this testimony was competent or not. It certainly was of but little, if any, value in determining the fact at issue, and it is apparent to us from the record that plaintiffs were not prejudiced by it, and that the judgment would have been the same if it had been excluded. The error, if any, is not of sufficient importance to justify a reversal of the judgment. (Merle v. Mathews, 26 Cal. 467; Persons v. McKibben, 5 Ind. 261; Williamsburg City Ins. Co. v. Cary, 83 Ill. 454; Albin v. Kinney, 96 Ill. 216.) The judgment of the district court is affirmed. Argument for Appellant. [No. 1165.] SAMUEL BROWN, RESPONDENT, v. ALVARO EVANS, APPELLANT. CONTRACT-COVENANTS IN DEED-USE OF WATER.-In construing the conditions of a deed which gives the grantee the right to take sufficient water from certain ditches "to irrigate the land conveyed, and for domestic purposes, to an amount not exceeding two hundred inches," upon condition that he should pay pro rata as the amount of water he uses on the land conveyed shall bear to the whole amount of water that is conveyed in said ditches, for any needed repairs of said ditches: Held, that the grantee has the option of using whatever amount of water he deems sufficient for these purposes, and is not liable for the expenses incurred in repairing the ditches beyond a pro rata proportion, based upon the quantity of water actually used or demanded by him. IDEM-NOTICE OF AMOUNT OF WATER NEEDED ESTOPPEL-EVIDENCE.-If the grantee gives notice to the grantor that he requires a specific quantity of water, for the purposes mentioned in the deed, and the same is furnished to him, he is estopped from denying that he did not need the amount specified in his notice and did not use it. And, in an action against him to recover his proportionate share of the expenses of repairing the ditches, such notices, as long as they remain unchanged, are admissible in evidence to show the quantity of water required and used by him. APPEAL from the District Court of the Seventh Judicial District, Washoe County. The facts are stated in the opinion. C. S. Varian and P. Evans, for Appellant: I. The deed of respondent's grantor to appellant fixes the rights of the parties. Plaintiff's instruction No. 1 cannot be reconciled with the other instructions. The deed required plaintiff to keep two hundred inches in the ditches at defendant's disposal. It permitted, but did not require defendant to take two hundred inches or less. It only obliged. him to pay a pro rata based upon the quantity actually used by him. The complaint alleges an actual use of two hundred inches, and founds the cause of action thereon. The court elsewhere construes the deed and instructs the jury that it was plaintiff's duty to keep sufficient water in one or other of his ditches to enable defendant to take his two hundred inches; that defendant was not obliged to take any |