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

the stocKholderS II the current price were
allowed, bnt 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 70 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 wrongdoing.
Where the intention of wrongdoing was car
RED out court of equity is justified iE 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 So so per ton for
all ores milled, and this part OF the Judgment
which is erroneous only so far as to the ores
worked at the Vivian mill-may be modified in
the findings in the record. The proper sum is
$2lO 1877 30 on ore sent to the Nevada and
Mexican mills. To this extent the Judgment
against Hayward and Levy is fully warranted
But the fact that the Nevada mill had nothing
to do with the ores reduced at the Mexican mill
would require that the judgment be reduced
still further. Yet this and all other errors in
the proceeding affecting that corporation be-
cone immaterial. in view OF the conclusion
that 1t was never brought under the jurisdic-
tlon OF the Superior Court. The service on
Evan Williams, superintendent of the mill at
virginia City, was insufficient.
The directors of the Hale & Norcross Com
pany are not contended to be liable, except as
10 negligence, but they are not charged with
negligence. Fraud and negligence, however
culpable, are not the same thing. The plain
TIN mas no right to demand conviction for
fraud when no fraud has been committed.
The following provision in section 3, article
XII OF the constitution it is argued by counsel
should be construed literally:
The directors or trustees of corporations and
Joint stock associations shall be jointly and sever
ally liable to the creditors and stockholders for all
moneys embezzled or Incorporated by the
ofncers OF such corporation or joint stock associa
q TORI, nf nf qnrh or
trustee.
E1TRAvAGANCE NOT A CRIME.
According to this construction some large
stockholder elected director. who had to his
utmost ability guarded the interests of the
company, could have been singled out and
compelled to make good the entire loss by
Wlllful misconduct of hostile board.
Mlsappropriation means misapplication of
funds entrusted to an officer for a particular
purpose by devoting them to some unauthor-
zed purpose, and does not apply to the pcy
ment of extravagant prices for services or ma
terlais properly appertaining to the business OF
the corporation.
II the directors had been sued for negligence
the statute OF limitations would have been
complete defense IS to some and partial as to
olners. The directors, other than Levy, are
entltled TO q new trial of the whole issue.
In constituting the findings, it ust be held
that Fox was a stock holder IN substantial
sense
The objections to the form of judgment or
judgments should have been made to the COM
plant, as in form the judgments follow the
com plant. In view OF these conclusions on
the main points most OF the other assignments