Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-05-04
ON REHEARING
OPINION

BY Bonnifield, CD
The defendant petitions for a rehearing /
and suggests that the court overlooked
certain points involved in the appeal
We considered all such points but
thought it was not worth while to nstice
them in the written opinion. If we I'M
derstand tho petitioners contention it is,
substantially, that the court below struck
out all testimony of ore mined prior and
subsequent to PLAINTIFF lease that then
nothing was left in tho case on which the
jury could base q verdict for the plaintiff
and, therefore, the court below erred in
denying defendants melton for a nom
suit.
In our opinion the record does not
show that all such testimony was strick-
en- out, but that it shows to the co ntrary.
Besides, in the defendants statement on
motion for new trial he assigns as error,
to-wit: IA. The court erred in denying
defendants motion to strike out all tes-
timony of the witness L,rini concerning
ores mined on leases prior or subsequent
to plaintiff IS lease"
We we're of opinion and still enter
tain it, that if all the testimony Of ore
mined prior and subsequent to the term
of plaintiff g lease had been stricken out
the court would not have been justified
in granting a non-suit. For the undis-
puted testimony is that in the month of
April of the plaintiffs term under his
lease, the defendant extracted about one
Hundred tons from one body of ore and
about eighty tons Of ore from another
~ iv,S min hot OF fhott / y
market price of lead was $3.50, and it APP
pears from the evidence that when lead
was at that price said mine could be
worked at great profit. And it is alleged
in the complaint that during the year
between June 18th, 1885, and June 18th,
1897, being the term Of plaintiffs lease,
that the descendant extracted from said
mining claim and sold gold, silver, lead
ore of the value of Sl0,O00.0O." The al
legation that defendant extracted rom
said mining claim gold, silver, lead ore OF
the value Of 100000 between said dates
is not denied by the answer, and when
the melton for non-sult was made and
denied, the fact alleged, as aforesaid
stood admitted and still stands so.
Second ground for rehearing. The pc.
appellant in his opening brief at page 1s
and which seems to have been over
looked, is that there is material and
recognized distinction between profit:
to an established business and pros
pective one, and that actual less by inter
ruption of an established business may
be recovered while prospective loss for
business to I've entered into is denied"
The petitioner cites authorities and ar
CUES in support of the above contention
through several pages of typswritine
We are of opinion that the business Q
mining on the Homestake mine was
pretty well established, and that tn
evidence shows that the profits thereof
prior, during and subsequent to plain
tiff IS lease were very great. The uncon
tradcted evidence is that the defendan
mined seven thousand tons of ore prio1
to plaintiff g lease, that the mine wa
profitably worked by lessees in 1893, 1S9
and up to August, 1895; that during tn
year next after plaintiffs lease expire,
there were extracted by defendant
lessees 1915 tons from the ore bedy w icI
the plaintiff proposed and intended t
And it is shown by the pleadings that tn
defendant mined orc of the value of $40
10000 during the plaintiffs said tern
Oscar J. Smith testified: "This is tn
most desirable smelling ore in the world
High percentage of lead and no unde-
sirable ingredients" We think that tn
contention OF the petitioner that minin
on said mining claim was not an estal
lished business and the conclusions h
draws therefrom are without merit
Third Gound. Petitioner says the al
pellant did except to the oral charge
the court, for the reason that it did NJ
correctly state the law applicable 70 tn
case, and he submits, that as far as til
oral charge of the court is concerned, til
rule of McGurn VS.. McInnis ought not
be applied and the objection heretofel
presented to that charge should be col
sidered.'' The oral charge contained Sc,