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ples of construction. The defendants in error have not only parted with a large portion of their interest, but have practically surrendered the management and control with which they were invested by the contract of sale. In addition to these acts they have further impaired the security relied upon by plaintiffs in error, by entering into the agreement for consolidation of the two properties mentioned. No such merger of mines was contemplated, and certainly it was not contemplated that Linn should depend for the purchase money upon the net proceeds of a consolidated property, or two mines to be operated under a general manager, to be selected by the joint owners of both. These facts and considerations afford good reason for the complaint that the defendants have voluntarily put themselves in a position whereby it is not only impossible for them to comply strictly with their contract with Linn, except by immediate payment in cash, but also impossible for Linn to enforce the contract, otherwise than by declaring the five thousand dollar installment due and payable. When the subject-matter of the contract entered into between Linn and the defendants in error is considered; the condition of the title to the American mine at the time the contract was made; the men upon whose management, and the particular mine upon which, he relied for full payment of the interest sold,-when these and other facts are stated in the complaint, such as the failure of defendants to pay or even to render accounts of the operations contemplated by the contract of sale, and the inability of the plaintiffs to obtain any information concerning the indebtedness, it is our opinion that a good cause of action is stated. If the facts are otherwise than as stated, the court must be informed of them by an answer.

It seems clear, from an inspection of the contract itself, that the entire course pursued by defendants has been just the reverse of what was contemplated by the parties at the time of its execution.

Assuming the facts stated to be true, the defendants have forfeited their right to pay for the property purchased out of the net proceeds, and the purchase money is due and payable in cash. Judgment reversed, and cause remanded for further proceedings.

(68 Cal. 14)



Filed November 19, 1885.


An assessment to "Sulphur Bank Quicksilver Mining Company, F. Fiedler, agent," is a sufficient assessment to the company of its property, and the reference to "F. Fiedler, agent," was not an assessment to him, but a mere reference, in the assessment, to him as agent of the company.


The superintendent of a mining company is the managing agent thereof, and authorized to furnish the assessor with a list of the corporation's taxable property; and in an action to collect the tax, the corporation is estopped to question the correctness of the description of the property as contained in the list so furnished.

3. TAXES JUDGMENT FOR-STATE AND COUNTY TAXES MUST BE DISTINGUISHED. The judgment, in an action to collect state and county taxes, should not be for the gross amount, but should distinguish between the amounts respectively due the state and county.

Department 1. Appeal from superior court, county of Lake.
Welch & Britt and J. C. McCeney, for appellant.

R. W. Crump, for respondent.

Ross, J. 1. The assessment put in evidence shows property assessed to "Sulphur Bank Quicksilver Mining Company, F. Fiedler, agent." It is contended for the appellant that from this it cannot be told whether the assessment is to the mining company or to F. Fiedler or to agent. We think there is nothing in the point. If the same question was put to any one with ordinary sense in the business. walks of life, he would have no difficulty in understanding that the assessment was to the Sulphur Bank Quicksilver Mining Company, and that the reference to F. Fiedler, agent, was only to him as agent of the company. We think the same common-sense view should be taken by the judges.


2. It is insisted that certain of the descriptions of real property found in the assessment are radically defective. But all of the descriptions were taken by the assessor from a list furnished him by Fiedler, who was the superintendent of the defendant company. is said, however, that the statute (Pol. Code, §§ 3629, 3630) requires that the statement of the property of a corporation must be made by its president, secretary, cashier, or managing agent, and that Fiedler was neither of these; that he was only superintendent, and therefore not authorized to furnish the list to the assessor. The only difference we can see between the "managing agent" and "superintendent" of a mining company is one of name. We therefore conclude that he was not only authorized, but required, upon demand, to furnish the assessor with a list of the property of the company of which he was superintendent, and that the company is estopped from questioning the sufficiency of the description so furnished in an action to v.8P,no.10-38

collect the tax. City & County of San Francisco v. Flood, 64 Cal. 504; S. C. 2 Pac. Rep. 264; People v. Stockton & C. R. Co., 49 Cal. 415.

These views dispose of such points in the present case requiring special notice as are not covered by the decision in the case of the same title, No. 8,057, and filed October 10, 1884. County of Lake v. Sulphur Bank Q. M. Co., 4 Pac. Rep. 876. In that case it was determined that section 3803 of the Political Code refers to the "delinquent taxes" mentioned in the sections immediately preceding, and which remain unpaid until the third Monday of March. In so far, therefore, as the judgment appealed from allows interest on the amount of taxes at the rate of 2 per cent. per month, it is erroneous. The judgment is also irregular, in that it is for a gross sum, not distinguishing between the amounts due the state and county respectively. County of Lake v. Sulphur Bank Q.M. Co., supra; Sacramento v. Central Pac. R. Co., 10 Pac. C. Law J. 315. In all other respects the judgment is right. And as the errors can be corrected without a new trial, it is here adjudged that the cause be, and hereby is, remanded, with directions to the court below to modify the judgment in the particulars indicated, and as so modified it will stand affirmed.

We concur: MCKEE, J.; McKinstry, J.

(67 Cal. 656)


(No. 8,658.)

Filed November 19, 1885.


It is a question for the jury to determine whether a mining location has been abandoned or forfeited prior to an attempted subsequent location. 2. SAME-LOCATION OF MINING CLAIM-MARKING BOUNDARIES.

The sufficiency of monuments and stakes to mark the location of a mining camp depends on the condition of the ground to be located; if the conformation is such that the monuments and stakes would so mark the boundaries that they could be readily traced, they are sufficient; the question of their sufficiency, however, being one for the jury.


The construction of pleadings is for the court and not for the jury.


Where, in ejectment, the answer admits ouster, it is erroneous for the court to instruct the jury that ouster was one of the issues to be tried, and that they must find thereon.

Department 1. Appeal from superior court, county of Mono.
N. Bennett and P. Reddy, for appellant.

Kittrell & Owen and R. M. Clarke, for respondent. Ross, J. This is an action of ejectment to recover a mining claim. It seems that the ground was originally located by one Neal, and called the "Neal Mine." The plaintiff claims to have subsequently relocated it on the first of January, 1881, under the name of the "Permelia Mine." The instructions of the court to the jury were erroneous in several particulars.

1. The evidence tended to show a location of the ground in question by Neal prior to the attempted location by the plaintiff. Whether or not such location by Neal, if made, was abandoned or forfeited prior to the plaintiff's attempted location on the first of January, 1881, was a question for the jury to determine. If, at the date mentioned, it remained a valid, subsisting location, the ground was not open to location by the plaintiff or any one else. The third and fifth instructions given by the ourt below were therefore erroneous.

2. The court further instructed the jury "that a monument of stone two feet high, placed in the center of the location, with a notice of location placed thereon, and a similar monument of stone or a stake at the center of each end of the location, and a similar monument or stake at each corner of the location, are a sufficient marking of the location on the ground, and constitute a valid location of a mining claim." That depends on the condition of the ground to be located. If the conformation is such that monuments and stakes of the description given would so mark the boundaries as that they could be readily traced, they would be sufficient; otherwise not. But that was a question for the jury.

3. The court erred in instructing the jury, as it did in the second instruction, that if they should find "that the defendant, in his answer, denies plaintiff's title, possession, and right of possession, and claims title, possession, and right of possession in himself, then, as to the question of ouster, you are instructed to find for the plaintiff.” The construction of the pleadings was a question for the court, and not for the jury. The answer admitted the ouster; and the court therefore further erred in the first instruction in telling the jury that the question of the ouster of the plaintiff by the defendant was one of the issues to be tried by them.

Judgment and order reversed, and cause remanded for a new trial. We concur: MCKINSTRY, J.; MCKEE, J.

(67 Cal. 663)

OAKLAND GAS-LIGHT Co. v. DAMERON and others. (No. 8,380.) Filed November 19, 1885.


Findings on a plea that plaintiff's cause of action is barred by the statute of limitations are sufficient if they are as broad and specific as the plea.


In ejectment, evidence that defendant was the landlord of the tenants in possession is sufficient evidence of the defendant's possession.


The corporate existence of a plaintiff in ejectment may be established by evidence that it was a corporation de facto.


The want of authority in the Mexican governinent to make a grant of marsh lands between high and ordinary high tide. huld not to have been satisfacto rily shown.

Department 1. Appeal from superior court, county of Alameda.
C. A. & C. Tuttle and J. P. Dameron, for appellants.
W. W. Foote, for respondent.

MCKINSTRY, J. It is urged by appellant that the court below did not find on the plea of the statute of limitations. The plea is that plaintiff's cause of action is barred by sections 315, 316, 318, and 332 of the Code of Civil Procedure. The finding is as broad and specific as the plea. The defendant Dameron moved for a nonsuit on the ground that there was no evidence that he was in possession of the demanded premises when the suit was brought, or at any time. Section 379 of the Code of Civil Procedure provides:

"In an action to * * determine the right to the possession of real property which at the time of the commencement of the action is in the possession of a tenant, the landlord may be joined as a party defendant."

There was evidence that the defendant Dameron was the landlord of the tenants in possession. There was evidence that the plaintiff was a corporation de facto. In this action such evidence was admissible, and established the existence of the corporation as against the defendants.

It is said by counsel for appellant that the vital question in the case is, is the plaintiff entitled to recover the possession of marsh land which lies between the high and ordinary high tide? It has been adjudicated in the proceeding which resulted in the confirmation of the grant to Peralta that the Mexican government granted to him the lands herein demanded. It has not been shown to our satisfaction that the Mexican government had no power to make the grant, even if it be conceded that the existence of such power was not determined by the adjudication referred to. Judgment and order affirmed.

We concur: Ross, J.; MCKEE, J.

(68 Cal. 22)


(No. 8,507.)

Filed November 19, 1885.


The notice of intention to move for a new trial is no part of the judgment roll or record on appeal from an order granting or denying a new trial.


On appeal it will be presumed, in support of the action of the lower court granting a new trial, that the motion was made on the ground, among others, that the verdict was not justified by the evidence; and if the evidence be substantially conflicting, the order will be affirmed.


A recital in the statement of the case on motion for a new trial that the adverse party reserves the right to object to the hearing of the motion for a new trial on the ground that the notice of motion was not filed in time, does not raise an inference that such notice was not filed within the statutory period.

In bank. Appeal from superior court, Monterey county.

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