Guild Gold Mining Co. v. Mason

Citations

• 115 Cal. 95
• 46 P. 901
• 1896 Cal. LEXIS 978

Syllabus

<p>Action upon Contract—Terms op Contract—Conflicting Evidence— Review upon Appeal.—In an action upon a contract, where there is conflicting evidence upon issue joined as to the terms of the contract, and the defendant’s version of the contract is adopted by the jury, its verdict upon that issue is conclusive upon appeal.</p> <p>Id.—Contract to Work Sulphurets—Percentage of Assay—Return of Bullion—Pleading—Fraud—Negligence—Custom as to Tailings.—In an action upon an alleged contract to work sulphurets at a fixed price per ton, and to return to plaintiff ninety per cent of their assay value, for an alleged breach in failing to return that percentage, where the answer joined issue as to the alleged agreement for percentage, and alleged an agreement merely to return the total amount of bullion obtained, less the agreed price per ton, which defendant had done, and the jury found for the defendant upon conflicting evidence upon the issues joined, no question of fraud, or negligence in working the sulphurets, whereby a large amount was lost in the tailings, can be considered upon appeal, where there is no allegation in the complaint of a character to sustain such a cause of action, and no allegation or evidence of any custom or agreement that the tailings should belong to or be delivered to the plaintiff, and where the evidence tended to show that the sulphurets were rebellious and difficult to work, and there was no proof that defendant did not honestly and faithfully work them, nor that he did not return to plaintiff all the gold obtained.</p>