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

tract supplied a motive to both parties to in
crease the amount OF milling by the extraction
OF low-grade ores, and it may fairly be argued
that it also afforded an induceme mt to Levy to
connive at a careless and inefficient system OF
milling by which larger number of tons would
De mllled at the same cost, and consequently
at larger profit.
There follows an exhaustive description
of mining and milling ores on the Com
stock. Justice Beatty returns to the legal
aspect OF the case at an interesting point,
where he says the evidence shows that the
foreman of the Hale & Norcross mine was
in effect instructed to mine and send to
the mill ore assaying (by car sample) as
low as $12 ton-$14, it was stated at the
trial, was the lowest on which mine could
be conducted with profit. And this re-
celves comment as follows:
CONSPIRACY TO MINE WORTHLESS ORE.
In view of these facts which show that the
practice and the intention was to send to the
mill all ores assaying as high as SI2 per ton,
and in view of the understanding that the
mills were TO receive not merely the bare cost
OF working the ores, but So so in addition to
the cost for the use of the mills, it cannot be
said that the finding of a conspiracy to mine
worthless ore is without any support in the
evidence. Upon the whole | think the evil
denee sufficient to sustain the finding.
The next, and by far the most important ex-
ception to the decision of the Superior Court
relates to the various findings 10 the effect
PENDANTS worked the ores of the Hale & Nor
cross Company by fraudulent system of i'm
perfect milling BY which large portion of
their value was left in the Shines tailings and
residues ofthe mills. The principal evidence in
support of this finding consists of the car-sam-
pie assays which, it is contended, is confirmed
by proof of certain irregular and suspicious
transactions between the managers of the mills
and the Carson mint, as well as some other cir
cumstances of like import.
The contention of the appellants that the
Superior Court is excessive in its estimate to
the extent of $34 ,427 is found to be right, even
when taking the car-sample assays as q criterion
OF the am Mount of gold and silver in the ores
and sent to the mills. The appellants, how
ever, contend that the car-sample ASSAYS do
not, as found by the court, correctly show the
true value OF the ores We now come to the
pivotal point of the case-the value of the car
sample assay as criterion of the value of the
ore.
The testimony is without conflict that, &C.
cordlng to The general custom of dealing be-
tween the miners on the Comstock lode and
the managers and owners of custom-mills, the
battery samples are and the car samples are
not regarded as the true index of the value of
the ores. There is also no conflict in the evil
dence that the car samples always run above
the true value OF the ore. This fact was clearly
proven when the plaintiff closed his case in
chlef by the testimony OF his own witness, Mr..
John Mackay, and 1t was much more fully and
amply proved by q number of witnesses sworn
on behalf OF the defendants.
THE CONFLICTING EVIDENCE.
The conflict in the evidence in regard to
the disparity between the average assay of
the car samples and the real value of the
ore is quite exhaustively analysed, and
after quoting all the testimony that the
value of the Hale & Norcross ores is cor
rectly shown by car-sample assays Justice
Beatty continues as follows:
/ have only to repeat that in my opinion it
does not raise Substantial conflict with the
evidence of various witnesses W n cd
that the car-sample assay always exaggerates
the value OF the ore. 1t remains only to notice
the legitimate argument. of counsel for re-
spondent, that, If the fact is as these witnesses
claim, there ought to be some rational explain
alton OF it. quite agree with counsel on this
point that there must be some cause of uni
form operation to bring about the invariable
result that the average of the car-sample assay
always goes above the real value OF the ore:
and that If such cause exists some one ought
to be able to point it out / think however. a
TO be found in the evidence.
If my views as to the effect of the evidence on
this point are correct, it follows that there is
no basis left for the estimate of the court as to
the amount of damage sustained by the Hale &
Norcross Company by reason OF fraudulent or
imperfect milling. 1t has already been shown
that even on the theory that those ores act
ually contained the amount OF gold and silver
indicated by the car-sample assays, their total
value was overestimated in the findings by
more than $34 900. If this is deducted, and a
iulbueT utuuCllOn VI T1U u lOu tdCCOTQl0R TO
the estimate of Mr.. Mackay, the
plaintiffs own witness) is made on
account of the difference between the car
sample assays and the actual value of the
ores, 1t reduces the estimate of the Superior
Court over 100000 on the original value of
the ores and makes corresponding reduction
In the amount OF bullion supposed to have
oeen lost or diverted; or, in other words since
the defendants were held for about rs per
cent OF the gold and silver supposed to have
been contained in the ore the judgment would
do not add the whole of the supposed loss at
the Vivian mill, because the principal error in