Amador ledger., 1902-03-28
Supreme Court Decision.

cision ofsthe supreme court in the case
of Bernardis VS.. Annie E. Allen:
Sac. No. 59-Department One March i2. 1902
Joseph Bernardis, plaintiff and appell-
ant, VS.. Annie E. Allen, ct al, de-
PENDANTS and respondents.
Appeal from the Superior Court of
Amador County-R. c. Rust, Judge.
For appellant, Edward Lynch,
John F. Davis, D. L. Donnelly. For
respondents, VIM. ]. MCGEE, G. P.
Vicini.
Suit was brought to declare part
nership in the Macmillan mine sit
uated in Sutter Creek mining district,
Amador county, arising from the de-
velopment thereof, and for an account
ing of the proceeds of the sale of said
mine. Judgment went for the defend
ants in the court below, from which,
and an order denying plaintiff IS motion
for new trial, the appeal is taken. In
1898, and prior thereto, George Allen,
now deceased, owned the mine in ques-
tion, containing about eight and half
acres of surface, with l500-foot lode,
and the plaintiff, by permission of
Allen, prospected the mine and in May,
1894. entered into an agreement in
reference to the working of the same,
which the plaintiff claims to have been
partnership agreement, but on the
to have been an agreement to allow the
plaintiff, as practical miner, to work
the mine, furnishing the mill, ma
chinery and implements for that pur-
pose, and paying all expenses, and if
anything should be realized over such
expenses that the net proceeds if any
should be divided between the plaintiff
and the owner of the mine. The court
found, on all the issues presented,
against the claim of the plaintiff, in
reference to partnership. The main
contention on the appeal is that the
findings are not supported by the. evil
dence. The evidence is quite volumin-
Gus, but we have examined it quite
carefully and the most that can be said
in favor of appellants contention is
that there Is substantial conflict in
reference to the alleged partnership;
| and in such case it is a rule of this
court, so we'll recognized as not to re-
quire cases to be cited, that the find =
ings must be allowed to stand.
Many errors are assigned by appellant
in the admission of evidence and refusal
to strike out evidence. Those urged
on the appeal relate mostly to i'm
peaching evidence, and particular
stress is laid upon the questions put to
the impeaching witness, the following
being sample: 20. Mr.. Cleveland,
about July, 1895, at the Maximilian
mine, in the presence of yourself and
Mr.. Bernardis and Rolly Noe, did Mr..
Bernardis tell you that he had just had
George Aliens word to work the mine:
he had no agreement or arrangement
with him, but that Bernardis expected
Allen to do the right thing with him il
he sold the mine, or words to that ef-
fect?" The Objectionable part of the
question, as contended by appellant, is
adding, '!'or words to that effect In
TO sge HHls Fl 1mpesaHfiaa@ent sHia9
the appellant may be technically cor.
rect in his contention that the same
question should be propounded to the
impeaching witness, without the addi-
tion OF other words, as those asked the
witness to be impeached; but in this
case, however, the witness sought to
be impeached was also party in inter.
est. By the liberal rules of the code,
parties to an action, with certain ex-
ceptions, are allowed to testify in their
own behalf. One of the exceptions in
which they can not testify is where the
action is found upon claim or de-
mand against the estate of a deceased
person, as to any matters of fact oc-
curing before the death of such de-
ceased person. Code Civ. Proc :, sec.
10SO.( In this case the action, not
being technically founded upon claim
against the estate of George Allen, de-
ceased, the plaintiff was permitted to
testify. In his testimony, in reference
to the alleged agreement between him
self and George Allen, deceased, he re-
peats several times that mo one else
was present." Thus he is given full
sweep to give his version of the trans
action, whereas the lips of the other
party to it are sealed in death. The
purpose OF the rule excluding the testi-
mony of party, where the action is
founded upon claim or demand
against the estate of deceased person
isvery obvious. 1t was greatly to the
advantage of the plaintiff that he was
not excluded from being a witness in
his own behalf, and under such cir.
cumstances rules in reference to the
admission of evidence should not be too
rigidly enforced. Such rules are de-
signed to aid in arriving at the truth.
and not for the purpose of suppressing
the truth. Aside from the question OF
impeachment, strictly speaking, the
plaintiff himself being party to the
| action il was oOmnatapt 70 ,,o,-o -;