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


generalization of the ores according to the
carssamples relates TO ores sent to the Vivian
mill, and the full reduction on that account
mas already been made.
REASONS FOR NEW TRIAL.
The Justice assumes in all his estimates
that 70 per cent of the assay value OF the
ores is proper return in bullion to be
made at the mill, and the lower court
placed 1T at "a 6-10 per cent.
Probably the result OF the assays from the
samples selected from the wagons In those days
as testified to by Mr. Mackay is a nearer ap-
Proclamation to the true value of the ores than
Dy the methods of the present day But, sup
posing 1t was not, the ore o. greater value
would have been correspondingly more valu-
able. All that Mr. Mackay's evidence proves is
tEat the millers in early times felt they could
AFFORD to purchase ores of the class then mined
upon chance OF getting 81 per cent OF the
opinion that rs per cent OF the battery sample
is now fair return.
In MI Lyman's evidence he does not regard
1t as evidence of fraud if he got only rs per
cent SO If the defendants were held for even
90 per cent of the car-sample assay the 1udg-
d dnent on that basis would be more than
S30O,0OO less than that which was actually
rendered
1t is doubtful If the claim of the other
serious error in milling arising out OF the
disregard by the Superior Court of the
discount on silver bullion is clearly DEM
onstrsted by evidence If the court COM
puted the loss on the missing silver bullion
At Its standard value when the actual
value was at least 20 per cent below the stand
ard then it was serious error, for there can
be no doubt that judgment for the conversion
OF silver bullion payable in coin should be
based on coin value. The decision does not find
any direct evidence that car samples were made
on the standard basis, 81 1928 per ounce or
SILVER; But, however. there must be new
trial for other reasons and 1t is sufficient to
indicate the courts views on proper allowance
IN case the assays were upon an assumed value
OF silver bullion different from its market
value. The true method is to ascertain the
actual quantity of gold and silver and what
percentage should be returned by fair and hon
est milling The difference IS the damage.
SEPARATE AND ADDITIONAL DAMAGES.
The finding that the shines and concen-
trates became the property of a custom mill is
like that in regard to the mining of worthless
ores, not made the basis OF any award OF dam
ages and rests on similar grounds. The courts
conclusion that, as rs per cent of the car-sam-
pie assay was q proper return, large part OF
the value of these ores was improperly run
the property of the mill, was correct conclu-
sion from the premises. But the court gave no
separate or additional damages on account of
the value of the shines and concentrates be-
cause their value was in the 70 per cent.
claim is made on behalf OF tie respondent
that the Superior Court was justified in assum-
ing that the Hale & Norcross ores were OF the
value shown by the cGr-snmple assays, but the
contention is not supported by the doctrine as
expounded in the quotations set forth from the
celebrated ring case OF Armory VS. Delamire
Il Strange, 504
The facts do not make it applicable the
milling of the Hale & Norcross ores was not in
itself wrongful act. The means by which the
EN- ployment to mill them was obtained was
wrongful, but The milling, If properly conduct
ed, was lawful, legitimate and necessary. The
usual and only means OF establishing the
value Of the pulp and settler samples and assays
constitute the most direct and trustworthy
evidence, while oil other means of proof are
indirect and secondary.
But the evidence is that the car-sample assay
is invariably and largely in excess of the actual
value of the ore, and it is not reasonable to
assume that as q basis of computation this is
not holding that the respondent is bound by
the battery samples or by any definite sum, but
that the trial court should give proper con-
sideration to uncontradicted testimony and
make such deduction as is reasonable.
ASSERTIONS NOT sUBsTANTIATED.
The record does not bear out the assertions of
counsel as to the claim that evidence was sup
pressed by refusal to produce the Nevada Mill
and Mining Companys books, as no record was
kept in them of the working of concentrates,
ETC., but Kept in the office OF the corporation.
1t may be loose way OF conducting business. |
but it is not suppression of evidence.
No demand having been made upon any
party 10 this action for the books of the Bull !
lion and Exchange Bank OF Carson, the officers
and employees OF the bank cannot be treated as |
spectators of testimony.
AS TO the mint transactions urged in the ar |
gument as evidence OF purloinlng of bullion |
any discussion in this opinion of the weight of |
such evidence as affecting improper mill |
ing in anticipation OF new trial would |
be out of place. The only law cited in |
reference TO the improper keeping of re-
cords OF the mint = Section 1906, Revised |
statutes OF the United States-does not make it |
the duty of the superintendent of the mint to |
note the place OF production of bullion. But |
there is probably some later statute requiring |
something of The kind, but the record also |
shows that system was established which was |
followed by Hofer, who was only acting super |
intendent of the mint. 1t can only be inferred |
that parties sometimes deposited purchased |
bullion the origin OF which they did not |
know.
As to the item of exorbitant charges for mill |
ing the evidence and findings are clear that
nothing is left for discussion except pure |
question of law.
SUSTAINED BY THE EVIDENCE
The finding of the Superior Court that the {
cost OF milling did not exceed 81 80 per ton is |
fully sustained by the evidence, and it is |
equally certain that 81 80 was not O fair price !
for milling as between miner and miller deal |
ing on equal terms, ana under circumstances |
emitting the miller to fair compensation for |
the use of his mills. The question, therefore, |
is whether, in view of the manner in which the |
contract to mill these ores was obtained and |
executed, the mill-Owners are entitled to |
receive anything for the use of their mills If |
they are, there m st be new trial of this part |
OF the case; If they are not, then far at least
as Levy and the mill-owners are concerned |
there is no need of a new trial. AS to the other
directors, against whom there are several |
judgments, the case may be to some extent diff |
erent.
According to the doctrine cited in St. Paul
Distilling Company VS.. Pratt, 40 Mimi, 215, |
the appellants contend for 81 per ton for mill /
ing Comstock ores. But this case cannot be
determined by the rule applied to cases which
involve no element of misconduct, except an
express agreement of a trustee to pay himself
more than reasonable value. The court has
found that ores which would not pay for the
cost OF milling were intentionally mined and |
sent to the mills, involving certain loss to
the stockholders if the current price were
allowed, but no loss if the millers were limited
to the actual cost of milling. Under these cir
cumstances 1t was not inequitable to allow
only the actual cost of milling. 1t may be
argued that the market price should be al
lowed for milling ores that had value to pay
profit on mining and milling at current rates
with return OF rs per cent of the pulp assay.
But the courts cannot be expected to go into
very nice calculations and estimates to save
parties from consequences of wrongdong.
Where the intention of wrongdoing was car
ried out court of equity is justified in apply
ing to the whole transaction the one measure
OF compensation, actual cost.
JUDGMENT FULLY WARRANTED.
The Superior Court did not err in requiring
mill-owners to account for 50 so per ton for
all ores milled, and this part of the Judgment
which is erroneous only so far as to the ores
nd At.n1 l.. III IL