Murray v. Heinze

• Citation: 17 Mont. 353
• Parties: MURRAY v. HEINZE.
• Decision Date: 21 December 1895
• Court: Montana Supreme Court

17 Mont. 353

MURRAY

v.HEINZE.

Supreme Court of Montana.

Dec. 21, 1895.

Appeal from district court, Silver Bow county; William O. Speer, Judge.

Action by James A. Murray against F. Augustus Heinze for cancellation of a lease and possession of a mining claim. There was a verdict for defendant, and from an order granting a new trial defendant appeals. Affirmed.

This is an action to recover possession of the Estella Lode mining claim, situated in Silver Bow county, and to have declared forfeited a certain lease of said mine executed by plaintiff to defendant. As far as the same may be necessary, reference will be made to the pleadings, evidence, and instructions in the opinion. The case was tried to a jury, who returned a verdict for the defendant. The plaintiff made his motion for a new trial, which was granted. From the order of the court granting the new trial, the defendant appeals.

Forbis & Forbis and Smith & Word, for appellant.

Wm. Scallon, W. W. Dixon, and W. F. Sanders, for respondent.

PEMBERTON, C. J.

Among other things, the lease mentioned above contains this clause: It is also agreed by and between the parties hereunto that the said second party shall furnish the first party or his agent a statement on the first day of each and every month during the existence of this lease, showing the amount of ore extracted from said mine, and the value of the same; and, further, that all work done on said mine shall be done in a good and workmanlike manner; and it is further understood that a failure on the part of said second party to comply with any of the foregoing conditions will annul this lease, and entitle the said first party or his agent to take possession of said mine, and terminate said lease; and the said second party hereby waives any notice of such forfeiture on the part of the said first party; and finally it is agreed by said second party that he will work all ore extracted from said mine for 12 dollars per ton.” The chief contention in the case seems to be whether the defendant kept and performed the terms of this clause of the lease in working the mine.

The complaint, after alleging that the defendant failed to furnish the monthly statements mentioned in said clause of the lease, contains the following averment: “That the defendant has failed and neglected to work most of the ores extracted by him from said mine, under said lease, properly or skillfully, or in a good and workmanlike manner, or in such manner as to make the same most profitable to the parties to said lease, or for their mutual advantage and gain, in that he did not separate the high-grade or first-class ores extracted by him from the second-class ores, nor the said ores from the dirt, rock, waste, and ores of too low grade to pay, also extracted by him from said mine; but put all these materials, mixed together and without separation or sorting, through a concentrator, when in fact, as plaintiff alleges, the high-grade or first-class ores should not have been concentrated, and a great part of the stuff put through the concentrator would not pay for extraction or concentration, and should not have been mixed with the ores; so that the net product has been much reduced, and that the said defendant has thereby endeavored to secure to himself the contract price of working ores, for all or most of the material extracted by him from said mine, whether the same consisted of ores that would pay to work, or consisted of waste or rock containing little or no ore, or ores of such low grade as not to pay for working; and that thereby the defendant has sought to deprive plaintiff of the latter's proper share of the proceeds of the paying ores extracted from said mine, and has wrongfully retained and converted to his own use, as pretended charges for working ores, large parts of the said proceeds belonging to the plaintiff, and has caused to the latter great injury and loss.” There are other averments in the complaint, to the effect that defendant did not work the mine properly or to the mutual advantage of both parties, and that he so mixed rock and waste with the ores as to make them valueless or of little value to reduce or treat, to the damage of plaintiff. These allegations, as well as other allegations of the complaint, are specifically denied. Upon these particular issues an immense amount of testimony was produced pro and con. As one of the counsel for the appellant stated in his argument: “There were some thirty witnesses on one side, and the same number on the other.” In this volume of evidence, it is not denied that there is an absolute conflict of evidence. It is unnecessary, and would be wholly unprofitable, to extend this opinion by quoting this conflicting evidence. It is sufficient to say that the evidence is absolutely conflicting upon vitally material issues.

One ground of the motion for a new trial was the insufficiency of the evidence to justify the verdict. We are here confronted with the question as to whether the court was justified, under the circumstances, in granting the new trial. The counsel for the appellant contend that the granting of a new trial was an abuse of discretion on the part of the court. Special stress is laid upon the fact that the jury visited and inspected the mine before arriving at their verdict. In support of the contention that the court abused its discretion in granting a new trial on the ground stated above, counsel, among other authorities, rely upon Ormund v. Mining Co., 11 Mont. 303, 28 Pac. 289. In that case the court say the only issue was as to whether plaintiff had made a discovery within the boundaries of his claim. Three or four witnesses swore to the discovery. Thirteen witnesses, for the defendant, swore to the contrary. Their evidence was not rebutted. In addition, the jury inspected the mine, and found a verdict on the evidence, part of which was their own inspection, for the defendant. This court held that, under such circumstances, it was an abuse or “sound legal discretion” on the part of the trial court to grant a new trial. There was in the Ormund Case apparently a great preponderance of unrebutted testimony in favor of the defendant and in support of the verdict; but in the case at bar the record shows no such preponderance of unrebutted evidence in support of the verdict. Here there is an irreconcilable conflict upon the material issues, which distinguishes it from the Ormund Case. It is insisted that special importance should be given to the inspection of the mine made by the jury. It is true that, in deliberating upon their verdict, they had the right to take into consideration their observations in connection with the evidence of the witnesses. Ormund v. Mining Co., referred to above, and authorities cited in that case. But let us consider what the jury did or could observe and ascertain by their inspection of the mine in this case. They could form some idea as to the condition of the mine itself at the time of their visit; but they could not tell by such inspection of the mine whether the defendant had mixed the pay ores with waste, so as to reduce the value and yield thereof so low as to damage plaintiff, and render the same of diminished value to him as charged in the complaint. They could not see and determine whether, in the treatment of the ores, the defendant had so performed his part of the lease contract as to best subserve the rights and interests of both parties thereto. In relation to such matters the inspection of the jury necessarily amounted to nothing, and could not aid them in their deliberations upon their verdict. Haynes, in his work on New Trials and Appeals (section 97), says: “As is elsewhere shown, the supreme court will not disturb the ruling of the court below upon a motion for new trial on the ground under consideration, if there be a substantial conflict in the evidence. The multitude of decisions laying down this rule proceed upon the theory that the motion is addressed to the discretion of the judge; and that it is so addressed has been frequently decided. It follows that the judge may set aside a verdict, and grant a new trial, although the evidence be conflicting; and it has been held that it is his duty to do so if he is not satisfied with the verdict.” Section 288 of the same work says: “Where there is a substantial conflict in the evidence, the supreme court will not disturb the decision of the court below. This rule has been announced more frequently than any other rule of practice. It applies equally where the court below granted, as where it denied, the motion for new trial.” See authorities cited in the two sections quoted above. In Pico v. Cohn, 67 Cal. 258, 7 Pac. 680, the court says: “In Peters v. Foss, 16 Cal. 357, it was held that a motion for a new trial is addressed to the sound discretion of the court, and this court can interfere only in case of a plain abuse of discretion by the court below. This court affirmed the same rule in Quinn v. Kenyon, 22 Cal. 82, and in the opinion it is said: ‘It is only in rare instances, and upon very strong grounds, that this court will set aside an order granting a new trial.’ And it has been uniformly held by this court that a motion for a new trial on the ground of insufficiency of the evidence to justify the verdict or decision is addressed to the sound legal discretion of the court below, and that, on appeal from an order granting a new trial, this court will not reverse the order, unless it appears that there has been a manifest abuse of discretion.” See authorities cited in this case. In Chauvin v. Valiton, 7 Mont. 581, 19 Pac. 215, this court held that, when there was a conflict of evidence, “the granting of a motion for a new trial was within the discretion of the judge of the court below, and will not be disturbed when there is such conflict.” In Haggin v. Saile, 14 Mont. 79, 35 Pac. 514, this court said: “In order to justify us in reversing the order of the...