The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1898-10-05
Decision Adverse to
Hale & NorCrOSS.
SUPREME COURTS ORDERS
ovERCHARGEs FOR MILLING
MUST BE MADE GOOD.
Damages That Resulted From Fraud
ulent Loss of Precious Metal
RENTED by Request o.
the Plaintiff.

The Supreme Court has rendered final
decision in the case known as Nj. w. FOX
VS. the Hale & Norcross Silver Mining
Company ct al, and - the decision Fox
and his colleagues are the winners by
many thousand dollars, which must be
paid to them on judgment.
The case has been dragging along for
several years, ana it has had more legal
shutting about than a ball in tennis
court Fox and his associates sued the
management of the company for some
thing like a million and half dollars,
and among the allegations was that Oh
fraud in improper milling by allowing
large quantities of valuable metal TO go
out with the taiings. The important fea-
lures of this case are thus set forth In the
decision:
Under the complaint a recovery was
sought from the defendants IN behaH Oh
the corporation upon two distinct claims
or causes of acuon-One for the diner
ence between the amount paid by the cor
poration for the milling of the ores ana
the actual cost thereof and the other Tor
damages sustained by reason OF lmper-
feet and fraudulent milling OF the ores.
At the former trial of the case the gu.
periOr Court found that upon the Ilrsl OF
these claims the corporation nau pdlu
500 1877 so for milling the ores IN excess OF
the actual cost, ana that Tor other ca "
action ii had sustained damage to the
amount OF $7S9.6lS, and rendered Judg-
ment against the defendants Tor these
amounts. Upon the, appeal the supreme
Court affirmed the decision OF the oupe-
rior Court upon the first issue, Dut
reversed its decision upon the sec
Ond and remanded the cause, with dlrec-
lions to the Superior Court to enter
judgment against the defendants as OF tHe
date of its former judgment for the
amount of $210197 so. with interest from
that date Upon the issue presented by
the claim for damages sustained by rea-
son of the imperfect and fraudulent mill
ing of the ores. the order denying new
trial was set out and the Superior Court
was directed to retry that issue and make
its findings of fact in accordance with Ihe
views expressed IN the opinion VI Nhe 0u-
The Superior Court found that the cor
poration had sustained damage in the sum
of SAT- .6S3 from the frauqulent ana lmper-
feCt milling of the ores, and thereupOn
entered Judgment againt the defendants
that the plaintiff have and recover from
them for the use and benefit OF the cor
pOratfon the sum of $40 1871 so, with inter
est thereon from the 18th day or June,
1892, at the legal rate, upon the issue pre-
scented by the claim for having paid an
excessive price for milling the ores, ana
the further sum of SAT- ,6S3, with interest
thereon from the 18th day of June, 1872,
upon the issue presented by the claim Tor
damages sustained by reason of the I'M
perfect and fraudulent milling OF said
ores.
From the judgment the last appeal was
taken. After the hearing of the appeal,
Fox filed in the Supreme Court release
of all claims for damages, by reason or
the Imperfect ana ITduuuleIll Illil4liS VI
the ores, and has made motion that the
judgment appealed from be modified by
striking out that portion which authorized
a recovery of any portion of the damages
thus sustained; and that upon such notlfl-
cation the Judgment appealed from be
affirmed. In reply 1t is urged by the de-
PENDANTS that, instead of granting the mo-
ton, the cause should be remanded to the
Superior Court and the action made there.
The court held that FoX's motion was in
accordance with the practice of the court
and says:
Whether respondent GFox) makes such con-
sent for the reason that he is convinced that
he cannot prevail in the action or, as was
suggested in Carpenter vs. Gardiner, supra,
because he prefers TO remit the whole of the
damages upon this cause Of action rather
than submit to the delay and IN
convenience consequent upon new trial,
his motion for a modification of the Judgment
should be granted The release by the re-
spondent Of all claim for the damages thus
sustained, and his consent that the judgment
be modified by striking out that portion there
OF which authorizes a recovery upon this is
sue. has the effect to withdraw from considera-
tion upon this appeal all matters involved in
the rendition of this portion of the judgment,
and TO leave for determination only the judg-
ment rendered upon the other issue presented
by the complaint. The judgment of this court
Iants' motion for new trial upon the issue
presented by the claim for excessive charges
paid for milling the ores, and directing that
Judgment he entered against them for the
amount found by the court to the amount OF
that excess, was final determination of the
rights of the parties upon that issue. and the
judgment was a compliance with the mandate
of this court, and, its judgment upon this
issue is in strict accordance Herewith, there
is ground for appeal therefrom, and this
portion of the judgment must be affirmed.
The proposition of the defendants that
if the second cause of action is withdrawn
they are entitled to the costs of the second
trial, the court holds is contrary to law
and in conclusion Justice Harrison, who
wrote the opinion, says:
The cause is remanded to the Superior Court
and that court is directed to modify its 1udg-
ment herein by striking out those portions
thereof which authorize recovery from the
appellants of 1.-THE further of S417 $50 with
interest thereon at the legal rate from the 18th
day of June 1892, upon the issue presented by
the claim for damages sustained by reason Of
the imperfect and fraudulent milling of said
ores. together with plaintiffs costs dsbursed
at the former trial. amounting to the sum of
$3.50 40, and the further costs given upon the
second trial amounting to 1854 50'; and also
that portion thereof which directs that the
plaintiff have execution for the said further
of $417 6S3. with interest thereon at the
legal rate. from June II. 1892" AS so modi-
fed. the judgment is affirmed. The costs Of this
appeal are to be borne by the respondent.
DEATH BY THE ACID ROUTE.