108 Cal. 684 | Cal. | 1895
Appeal from the judgment and from an order denying a new trial.
This action was brought to recover the value of lumber alleged to have been sold by plaintiff to defendant to be used in the construction of a quartz-mill on the Rising Sun Mine.
The answer denies all the material allegations of the complaint, and avers that the lumber was sold by plaintiff to the Yosemite Mining Company—a corporation incorporated in the state of Illinois.
The court found that the lumber was sold to the defendant, but that at the time the defendant was the president of the Yosemite Mining Company, and for that company was in charge of and engaged in the management of the Rising Sun Mine. The court further found as follows:
“ That neither, at the time the defendant contracted with plaintiff for the lumber and materials furnished defendant as aforesaid, nor during any of the time plaintiff was furnishing the said lumber and material, did the defendant inform the plaintiff that he, said defendant, was acting as the president of or as the agent of the Yosemite Mining Company, nor did the plaintiff know at or during any portion of the time from September 15, 1883, to and including the second day of April, 1884, that the defendant was the president of or the agent of the Yosemite Mining Company, and the defendant did not, at or during any of said time, inform plaintiff that the said Yosemite Mining Company was the owner of said Rising Sun Mine, or that the lumber and materials furnished and delivered to the defendant as aforesaid were for the said Yosemite Mining Company, and plaintiff did not know during any of said time that said lumber and materials sold and delivered by him to the defendant as aforesaid were for the said Yosemite Mining Company, or that said company was the owner of said Rising Sun Mine. That plaintiff dealt and contracted with the defendant as the owner of*687 said Rising Sun Mine and as the principal in the transaction.”
It is claimed that the evidence does not support this finding, but a careful reading of the transcript convinces me that it is only one of numerous cases presented here where the real claim is that the finding is not supported by the preponderance of the evidence. Certainly the testimony of the plaintiff himself supports the finding in every respect, and the opposing testimony is not very positive upon the most material points. It tends rather to show that plaintiff may have known that •defendant was the agent of some company. Under such circumstances we cannot disturb the finding.
The facts being as found the defendant is liable.
Appellant also complains of certain alleged errors of law, in refusing to admit evidence offered by him. But I find no prejudicial error in the rulings.
The record does not show a stipulation that the minute-book might be used in evidence, and, if it did, the book was not attached to the deposition or returned with it. It was then incumbent upon defendant to prove its identity unless that was admitted.
The minute order showing, authority to purchase the mine was read in connection with the deposition.
For all other purposes for which the book was offered it was clearly incompetent even if its identity and genuineness had been admitted.
The judgments offered were not competent evidence upon any issue in the case.
It was proper to permit plaintiff to explain in rebuttal the telegram which had been introduced by the defendant to contradict his testimony.
The order and judgment are affirmed.
McFarland, J., and Henshaw, J., concurred.