The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-08-04

OF error become immaterial, and points not
herein particularly discussed seem likely 10
arise on new trial.
THE FINDINGS OF THE COURT.
To summarize the above, my conclusion is
that the record sustains or fails to sustain, the
findings and conclusions of the Superior Court
IN the following particulars:
L. That the defendants, Hayward. Hopart
and Levy, formed fraudulent combination
and agreement for mining and milling the
ores OF the Hale & Norcross Silver Mining
Company, but that the other directors or the
mining company were not parties to this
agreement, but were merely negligent in the
performance of their duties, and are, there
fore, chargeable only with such negligence
and are not chargeable with any actual fraud.
2. That the Mexican and Nevada mills were
under the control of Hayward, Hobart and the
Nevada Mill and Mining Company, but that
it is not shown that the Vivian mill was under
their control.
3. That Hayward, Hobart and Levy, with the
acquiescence and consent of the officers OF the
Hale & Norcross Company, controlled the
affairs of that company.
4. That Hayward, Hobart and Levy, in pur-
suance of their agreement aforesaid caused
quantity of inferior and worthless ores to be
extracted from the mine and to be milied,
after being mixed with ores of higher grade.
B. That the Hale & Norcross Company paid
~ per ton for milling said ores; that the ac-
tual cost OF milling the same was but 81 80 per
ton; that by reason of their fraud as aforesaid,
the said defendants were entitled to receive
only the actual cost of milling said ore; that
per ton for milling said ores the Hale & Nor
cross Company had sustained damage to the
amount of 1910, 1877 so.
3. That the evidence is insufficient to sustain
the finding OF the court that the Hale & Nor
cross sustained damage by reason of the imper-
rect milling OF the ores in the amount OF $780,
6lS, and that the actual amount of damage
sustained thereby cannot be determined from
the findings OF the court.
z. That the Nevada Mill and Mining Com
pany, not having been served with process, was
defendant.
THE JUDGMENT OF THE COURT.
The cause is, therefore, remanded to the SUI
perior Court with the following directions
viz:
The judgment appealed from Is set
aside, and the Superior Court is directed
to enter judgment as of the date of its
former judg ment against AIvinza Hay
ward and III. M. Levy for the sum of
S210,197 so, with interest from that
date, upon the issue presented by the
claim for having paid an excessive price
for milling the ore in the Mexican and
Nevada mills; and upon that issue the
order denying a new trial as to these ap-
pellants is affirmed.
As to the other appellants, except the
Nevada Mill and Mining Company the
order denying new trial as to this issue
is reversed and new trial thereon
ordered.
Upon the issue presented by the claim
for damages, sustained by reason of the
imperfect and fraudulent milling, the
order denying new trial is set aside as
to all the appellants, and the court is di-
rected, upon the evidence already TAX en-
In the case, and such other evidence as
may be presented by either party, to
make findings in accordance with the
views hereinbefore expressed. Upon the
amount, if any, of such damage sustained
by the Hale Sc Norcross Company, in adj
dition to the finding of the value of the
ore delivered to the mills, the court is
directed to find the amount and value of
the bullion that should have been re-
turned therefor.
The court should also find what
to the mills was necessarily lost in work
ing, or would not under fair milling be
separated from, the baser matter; and
also the amount of money, if any, re-
ceived by the mills from the working or
sale of the taiIings or residue of the ores.
Until the Nevada Mill and Mining Com
pany has been brought before the court,
the court will make no trial of the issues
against that company.
BEATTY, c. j.
We concur:
HARRISON, j.
VAN FLEET, j.
HENSHAW, j. 4
TEMPLE, j.
MFARLAND. j.