18 Nev. 133 | Nev. | 1883
By the Court,
This action was brought by plaintiff's to recover two thousand and ninety-five dollars and sixty cents alleged to be due from the defendant on a contract for reducing certain ores at defendant’s mill. The contract, as averred in the complaint, required defendant to pay plaintiffs—after deducting six dollars and fifty cents per ton for expenses of reduction—“sixty-five per cent, of the assay value of said ores, such assay to be made from said
The defendant, in his answer, alleges that “he was to pay sixty-five per cent, of the battery sample assay, less six dollars and fifty cents for working, and less discount on the bullion produced. ” He avers that he reduced twenty tons of ore and “admits that battery samples of such workings were made,” but denies that they were duly or properly made, and says “that either by fraud of plaintiff Cizovich, or mistake by defendant’s employes, they failed to show the assay value of such ores.” He “ admits that such assays apparently showed the value of such ores or matter to be one hundred and thirty-four dollars per ton, but avers that the real value was not more than fourteen dollars and sixty cents per ton.” He also avers “that the entire product of such ore, * * * by him carefully and properly worked at his mill, was no more than one hundred and eighty dollars.”
The cause was tried before the court without a jury and judgment was rendered in favor of plaintiffs for two hundred and sixty-five dollars, or its equivalent in gold and silver bullion.
1. We are of opinion that the averments in the answer raised an issue as to the terms of the contract and also as to the correctness of the assays which were taken from the battery samples.
2. It was argued by plaintiffs that the assays taken from the battery samples were the only tests provided in the contract for determining the value of the ore, and hence that the court erred in admitting any other testimony for the purpose of establishing its value. By the terms of the contract the assays from the battery samples were to be taken as a means of ascertaining the value of the ore ; but this was, 'of course, upon the understanding of the parties that the assays would be correct. It never was the intention of the parties that they should be bound by the assays
3. Upon the trial plaintiffs introduced two assays taken from the battery samples—one taken under the direction of the defendant of one hundred and thirty-four dollars and eighty-two cents per ton, the other taken under the direction of the plaintiff' Oizovich, of one hundred and twenty-eight dollars per ton. About half the ore had passed through the battery when the assay of one hundred and thirty-four dollars and eighty-two cents was obtained. It is argued in behalf of plaintiffs that defendant was negligent in not then taking the necessary steps to secure himself by having other samples taken from the battery, and seeing that proper and correct assays were made therefrom, or in not refusing to reduce the balance of the ore unless the mistake in the assays taken was corrected in some manner that might be agreed upon between the piarties. It is also
The defendant worked two thousand seven hundred pounds of ore belonging to himself with plaintiffs’ ore, and the entire clean-up at the mill, of all the ore, only produced a bar of bullion of the value of two hundred and sixty-five dollars. Bossell testified on behalf of defendant that he was an amalgamator by occupation, of fourteen years experience ; that he had charge of the working and reduction óf the ore; that it was properly worked; that he took as fair a sample as he could from the tanks ; that the amalgam out of the pans “represented the entire product of the ore which plaintiffs sent to the mill;” that he “did not intend to clean up, but the difference between the assays from the battery and the assay from the tank was so peculiar that Mr. Hully told me to clean up ;” that the sample taken “ from the tank had the results of no other ore except plaintiffs’ ;” and that he did .not think it possible that they “could have • made a loss in milli ng this ore of the difference between two hundred and sixty-five dollars and two thousand dollars.” This testimony was competent, as it tended to show that the assays from the battery samples were not correct; and also tended to show what the true value of the ore was.
It is claimed that the court erred in allowing testimony as to the value of ore at other places in the St. Johu mine than that from which plaintiffs’ ore was taken. We deem it unncessary to decide whether this testimony was competent or not. It certainly was of but little, if any, value in - determining the fact at issue, and it is apparent to us from the record that plaintiffs were not prejudiced by it, and that the judgment would have been the same if it had been excluded. The error, if any, is not of sufficient importance to justify a reversal of the judgment. (Merle v. Mathews, 26 Cal. 467; Persons v. McKibben, 5 Ind. 261; Williamsburg City Ins. Co. v. Cary, 83 Ill. 454; Albin v. Kinney, 96 Ill. 216.)
The judgment of the district court is affirmed.