Shively v. Eureka Tellurium Gold Mining Co.

SMITH, C.

Appeal from a judgment against the plaintiff and from an order denying a new trial.

The suit was brought to recover various sums of money, set up in as many counts of the complaint, and aggregating twenty-eight thousand five hundred and twenty-eight dollars and forty-four cents. One of these counts was for a small amount alleged to be due on a promissory note made by the defendant corporation to the plaintiff; the others, for various claims against the company assigned to plaintiff by Ludlum, one of its directors. Of the assigned claims some were for claims originally held by Ludlum, others for claims assigned to him—one by one Eeid for a small amount, another by Jones, a director of the company, and the others by Swezey, also a director.

These claims were all expressly admitted in the answer of the defendant corporation, but disputed by the intervenor, by whom it is in effect alleged that the suit was brought for the use and benefit of Ludlum, Swezey, and Jones, and that the claims sued upon were concocted by them in pursuance of a conspiracy to defraud the company of its mine and mining property. And it was further alleged by the intervenor—by way of counterclaim in favor of the defendant—that Ludlum and Swezey, prior to the assignments of their respective claims

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against the company, became indebted to the company each in the sum of twenty thousand nine hundred and eighty-seven dollars, on account of assessments levied on stock held by them. The intervenor’s interest in the controversy—as appears from the allegations of the complaint—was simply that of a stockholder.

The court found for the plaintiff on each of the causes of action set up in the complaint, except the fourth, on which the finding was against the plaintiff, and the sixth, where the claim was reduced from five thousand eight hundred and fifty dollars to two thousand two hundred and sixty-four dollars; the aggregate amount thus found for the plaintiff being fifteen thousand nine hundred and sixty-nine dollars and ten cents.

But the court also found upon the issues raised by the counterclaim that Ludlum and Swezey, prior to their respective assignments, were indebted to the company on account of assessments on stock held by them, each in the sum of twenty thousand dollars; and, as conclusion of law, that the intervenor was entitled to judgment that plaintiff take nothing by his action, and for costs.