delivered the opinion of the court.

1. The evidence shows that Leavenworth was, at the time he borrowed the $2,000 of Nelson, the owner of a mine of more or less prospective value in Jackson County, and that he borrowed the money for the purpose of erecting an ore mill thereon. At the time the loan was made, Leavenworth gave to Nelson a written option to purchase within a year a fifth interest in the mine for $5,000, if he so desired, and, in case he elected to do so, agreed to convey such interest upon the payment of $3,000 in addition to the money loaned. There is no evidence whatever that Nelson ever ’exercised the option. On the contrary, the testimony, of himself and Leavenworth is to the effect that he refused to take the property, and so notified Leavenworth before the option expired. Indeed, by that time the property had been attached by Leavenworth’s creditors, and it would have been impossible for him to have complied with his contract if called upon to ;do so. It is true that, after the note and mortgage were made, Nelson loaned Leavenworth $3,000 or more in cash, and became his surety and obligated to pay several hundred dollars in addition; but this was not in pursuance of the option, or with the intention of purchasing the property, but because of Leav*465enworth’s importunity, and Nelson’s good nature and faith in his representations as to the value of his mine.

2. It is in evidence that Leavenworth told his creditors that the mortgage had been paid, and that, acting upon this information, the actions at law upon which the defendant Gregson’s title rests were commenced, and the judgments therein obtained; but his representations did not change the facts as they existed and were not binding on Nelson, who was not present, and knew nothing about them.

If the testimony of the witnesses in this case is to be believed, and there is no reason why it should not be, there is no alternative hut to affirm the judgment, and it is so ordered. Affirmed.