Fox v. Hale & Norcross Silver Mining Co.

HARRISON, J. The facts in this case were fully recited in the opinion given upon a former appeal (Fox v. Hale etc. Min. Co., 108 Cal. 369), and need not be repeated. Under the complaint a recovery is sought from the appellants in behalf of the corporation upon two distinct claims or causes of action, one for the difference between the amount paid by the corporation for the milling of the ores and the actual cost thereof, and the other for damages sustained by reason of imperfect and fraudulent milling of the ores. At the former trial of the cause, the superior court found that upon the first of these claims the corporation had paid $210,197.50 for milling the ores in excess of the actual cost thereof, and that upon the other cause of action it had sustained damage to the amount of $789,618, and rendered judgment against the appellants for these amounts. Upon the appeal therefrom this court affirmed the decision of the superior court upon the first issue, but reversed its decision upon the second, and remanded the cause with directions to the superior court to enter a judgment against the appellants herein, as of the date of its former judgment, for the amount of $210,197.51 [221]with interest from that date. Upon the issue presented by the claim for damages sustained by reason of the imperfect and fraudulent milling of the ores, the order denying a new trial was set aside, and the superior court was directed to retry that issue, and make its findings of fact in accordance with the views expressed in the opinion of this court. After the cause had been remanded to the superior court, that court, in obedience to these directions, proceeded to take evidence upon the second of the above issues, and made its findings of facts thereon, in which it found that the corporation had sustained damage in the sum of $417,683 from the fraudulent and imperfect milling of the ores; and thereupon entered judgment against the appellants herein that the plaintiff have and recover from them for the use and benefit of the corporation the sum of $210,197.50, with interest thereon from the eleventh day of June, 1892, at the legal rate, upon the issue presented by the claim for having paid an excessive price for milling the ores, and the further sum of $417,683, with interest thereon from the eleventh 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. From the judgment thus entered the present appeal has been taken. After the hearing of the appeal the respondent filed herein a release of all claim for damages by reason of the imperfect and fraudulent milling of the ores, and has made a motion that the judgment appealed from be modified by striking out that portion thereof which was rendered upon the issue presented by this claim, or which authorizes a recovery from the appellants of any portion of the damages thus sustained; and that upon such modification the judgment appealed from be affirmed. In reply thereto it is urged by the appellants that, instead of granting the motion the cause should be remanded to the superior court and the motion made there.