7 Nev. 135 | Nev. | 1871
By the Court,
There are many assignments of error relied on and argued by counsel for appellant in this court which cannot be considered, because not. properly brought up. We have frequently held that no fact found by the court below will be reviewed here, unless it be shown by the statement on motion for new trial that all the evidence adduced to sustain it is embodied in the record, for non constat but there was ample proof in support of it. This rule has been frequently announced by the court, and uniformly followed from the time of its organization. Sherwood v. Sissa, 5 Nev. 349. There is no showing that the statement in this case contains all the evidence on any fact involved in the case; hence, by the rule just stated, we are bound to conclude that every fact essential to make out the respondent’s case was sufficiently proven.
Again, it has been held that the findings of fact can only be brought to this court by embodying them in a statement properly certified. Corbett v. Job, 5 Nev. 201; Imperial Silver Mining Co. v. Barstow, Id. 252. The findings in this case are not so brought up, and therefore cannot be considered.
This leaves nothing that can be inquired into except such questions as may arise on the judgment roll, and such rulings at the trial as were excepted to. It is not claimed that the former exhibits any error, and only two exceptions are now relied on, namely: that “ the court erred in admitting the agreement, Exhibit D, in evidence; and secondly, in refusing to allow proof as to the value of the Truckee Ditch stock in connection with the plaintiff's ranch."
To afford a full understanding of these points, it becomes necessary to state some of the facts detailed in the statement. It ap
After the plaintiff had closed his case, having introduced the promissory note with the necessary accompanying proofs, the defendant had occasion to offer, and did offer in evidence, the agreement above set out; its admission was objected to on the sole ground that it was not stamped as required by the act of congress and the revenue laws of this state. To this objection it was answered that the two instruments constituted but one agreement or contract, that they were executed at the same time, and consequently that they were but parts of one transaction and agreement. And this was sustained by the evidence of the defendant, who testified that “ the note and agreement were made at the same time. Both papers were drawn up and laid on the table and signed together.” It is admitted that the portion of the agreement which is sued on as a promissory note was properly stamped, sufficiently not only if the
There was a conflict of testimony as to whether the papers here in question were executed simultaneously, or constituted one transaction, it is true; but the court below deemed the evidence sufficient to warrant the conclusion that they should be taken as one contract, executed simultaneously, and consequently admitted the paper objected to. In such case, the conclusion attained by the court below cannot be disturbed. The decision of the court at nisi prius, as to the sufficiency of proof upon any collateral fact like this, must be governed by the rule which prohibits the appellate court from setting aside a verdict or findings of fact, upon the ground of insufficiency of evidence, where there is a conflict. As, therefore, it cannot be said the court was nqt warranted by the testimony in treating the two papers as one contract, evidencing one transaction, we must accept it as an established fact in the case; and as one of the papers was stamped, it must be held, as was done in the court below, that the portion of the contract objected to required no separate stamp for itself, and was consequently admissible.
So the ruling upon the other assignment which is to be noticed was likewise correct. The value of the ninety shares of Truckee • Ditch Company stock could only be material, upon the assumption that the defendant was in some way bound, either to deliver the stock to the plaintiff or liable for its value. Now it is very well - settled that the measure of damage, in cases where there is a con