Downing v. Murray

Citations

• 113 Cal. 455
• 45 P. 869
• 1896 Cal. LEXIS 810

Syllabus

<p>Sale of Mining Claims—Accounting and Compromise between Co-owners—Action to Annul Settlement — Nonsuit.—Where several mining claims and parts of claims were sold together, and a dispute arose as to the respective interests of the co-owners of the claims, and as to the disposition to be made of the proceeds of the sale, and also as to items of expense incurred, which disputes were finally settled and adjusted, and the money distributed, upon a full accounting had, and compromise made, between them, with full knowledge of all the facts, such settlement cannot be set aside at the will of either party, but only upon a showing of fraud, mistake, or undue influence, and, where no such showing is made, the plaintiff, in an action to set aside the settlement and to open up the account, is properly nonsuited.</p> <p>Id.—When Nonsuit Should be Granted—Appeal—Presumption—Discretion.—The judge presiding at a trial by jury should grant a nonsuit where a verdict in favor of plaintiff should be set aside for want of evidence to support it, and, in the absence of a jury, where the evidence is insufficient to support a judgment for the plaintiff, and where a nonsuit is granted, it is to be presumed that the judge acted on this principle, and his action will not be disturbed on appeal where there is no reason for holding that he abused his discretion in concluding that the evidence was insufficient.</p>