Opinion
Department Two
Appeal from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial. G. W. Nicol, Judge.
COUNSEL:
F. P. Otis, for Appellant.
F. W. Street, for Respondent.
JUDGES: Haynes, C. Belcher, C., and Britt, C., concurred. McFarland, J., Henshaw, J., Temple, J.
OPINION
HAYNES, Judge
Appellant is the owner of a gold mine in Tuolumne county, and respondent owns and operates chlorination works in that county. This action was brought by the plaintiff upon an alleged contract made by it with the defendant, whereby the defendant was to work and reduce for the plaintiff certain sulphurets for the price or compensation of seventeen dollars per ton, and to return to plaintiff at least ninety per cent of the assay value thereof.
The sulphurets were worked by the defendant and the gold bullion obtained therefrom was returned to plaintiff; but, if the contract was as the plaintiff alleged it to be, the defendant should have returned seven hundred and twenty dollars and ninety-five cents more than was actually returned to the plaintiff. The defendant alleged the contract to be, in effect, that he would work the sulphurets for seventeen dollars per ton, and return the "bar," that is, the total amount of bullion obtained from the sulphurets; in other words, that he did not agree to obtain and account for at least ninety per cent of the assay value, but that he would only account for so much gold as he obtained from the sulphurets, less his working charges of seventeen dollars per ton.
The cause was tried by a jury and a verdict returned for the defendant. Plaintiff's motion for a new trial was denied, and it appeals from the judgment and from the order denying said motion.
Counsel for appellant concedes that there is a conflict in the evidence as to what the agreement was between the parties, and that therefore the defendant's version of it, having been adopted by the jury, is conclusive upon appeal, but insists that it appears from the testimony of the defendant himself that he did not return to plaintiff all the gold obtained by him from the sulphurets he worked for the plaintiff. This contention cannot be sustained. The defendant testified in substance that he did deliver all the gold he obtained, and we find no testimony to the contrary; but we understand counsel's contention in this regard to be that defendant should have obtained ninety per cent of the assay value of the sulphurets, and that he failed to do so; and he makes the estimate that there is in the tailings retained by the defendant, and which he never offered to return, five hundred and thirty dollars, which the assay of the tailings shows remained therein, and was not extracted by the defendant. The evidence shows that after the defendant had worked part of the sulphurets he was dissatisfied with the result, and communicated that fact to the plaintiff. He also admits that he stated to the plaintiff, at the time the contract or agreement was originally made, that he ought to obtain ninety per cent of the assay value of the sulphurets. If from fraud, lack of skill, or from carelessness or negligence in working the sulphurets a large amount was lost in the tailings, it might be that the plaintiff would have had a cause of action for negligence or want of skill, and the assay of the tailings would have shown approximately the amount of damages; but there is no allegation in the complaint of a character tending to sustain such a cause of action; but the cause of action is based upon an agreement that he would obtain and return, or return, whether obtained or not, at least ninety per cent of the assay value of the sulphurets delivered to him, and more if more should be obtained; nor is there any allegation or evidence of any custom or agreement that the tailings should belong to or be delivered to the plaintiff. The evidence tends to show that the sulphurets were rebellious and difficult to work, but there is no evidence tending to show that the defendant did not honestly and faithfully work them, nor that he did not return to plaintiff all the gold obtained. Some alleged errors of law occurring upon the trial are specified in the statement, but none of these are noticed [46 P. 902] or commented upon in appellant's brief. We have examined these exceptions, however, but find no error justifying a reversal of the judgment.
The judgment and order appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.