N.J. Zinc & Iron Co. v. Lehigh Zinc & Iron Co.

• Decision Date: 16 November 1896
• Citation: 59 N.J.L. 189,35 A. 915
• Parties: NEW JERSEY ZINC & IRON CO. v. LEHIGH ZINC & IRON CO.
• Court: New Jersey Supreme Court

35 A. 915

59 N.J.L. 189

NEW JERSEY ZINC & IRON CO.

v. LEHIGH ZINC & IRON CO.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1896.

(Syllabus by the Court.)

Error to supreme court.

Ejectment by the New Jersey Zinc & Iron Company against the Lehigh Zinc & Iron Company. From a judgment for defendant, plaintiff brings error. Affirmed.

T. N. McCarter and F. W. Stevens, for plaintiff in error.

R. W. Parker, C. D. Thompson, and G. Collins, for defendant in error.

DIXON, J. The New Jersey Zinc & Iron Company instituted an action of ejectment in the supreme court against the Lehigh Zinc & Iron Company, to recover possession of a vein of ore on Mine Hill farm, in the county of Sussex. On the trial in that county, a verdict was rendered for the defendant, and the exceptions there taken by the plaintiff form the basis of the assignments of error presented for review by this court. Many of these exceptions were directed against the rulings of the trial justice, which followed the lines laid down by the opinion of this court delivered in an action of trover brought by the same plaintiff against the same defendant, for the conversion of ore taken from the same vein (55 N. J. Law, 350, 26 Atl. 920). On the discussion of this cause before us, that opinion was assailed at great length, and with much zeal, by counsel for the plaintiff. Nevertheless, the court adheres to the views there expressed, as the most reasonable and practicable of those suggested, with respect to the title of these litigants, and the evidence by which it may lawfully be supported or impugned. Numerous exceptions to the admission or rejection of testimony, and all of the exceptions to the charge and to the refusals to charge (save as to a few requests to charge matters which could not affect the issues submitted to the jury), stand in the category just mentioned. It is not deemed necessary to bestow upon them further notice.

The printed case submitted to us seems to contain the stenographer's notes of the trial. These notes frequently indicate that exceptions were taken on behalf of the plaintiff which have not been sealed by the trial justice. This, perhaps, is an illustration of what Mr. Justice Brown said in Grayson v. Lynch, 163 U. S. 468, 485, 16 Sup. Ct. 1064, 1071: "There is always a possibility that, in the very abundance of alleged errors, a substantial one may be lost sight of." We can deal only with those which have been sealed.

The court has endeavored to give, and I have no doubt has given, due consideration to every legal assignment of error, but a special reference to each one of them would only involve a reiteration of rules which are throughly settled. Some of the exceptions touching the admission of evidence must be discarded as frivolous,—some because no ground of objection was stated at the trial (Mooney v. Peck, 49 N. J. Law, 232, 12 Atl. 177); others because they were practically abandoned on the argument; and still others for the reason that the ruilngs were harmless, or were within the discretion of the trial judge. The exceptions which do not plainly range themselves in these classes will now be considered.

In examining them, it should be borne in mind that the central question of fact to be decided by the jury was whether the vein in dispute consisted of franklinite or iron ore that could be removed without disturbing any vein, stratum, or mass of ore which in 1848, when the plaintiff's title originated, in a deed from Samuel Fowler to the Sussex Zinc & Copper Mining & Manufacturing Company, would have been thought reasonably fit to mine for zinc. The plaintiff contended for the negative of this question. An exception is sealed upon the exclusion, as evidence, of certain slips made out by the plaintiff's bookkeeper, in the regular course of his business, from reports sent to him daily by persons engaged in the plaintiff's manufacturing department, which slips purported to show what materials had been placed in the plaintiff's furnaces, and what products had been obtained therefrom between August 10, 1867, and November 10, 1868. The avowed object of offering the slips was to prove that, at the time stated, the plaintiff had manufactured zinc from such ore as was in controversy. These slips had none of the characteristics on the strength of which private memoranda of previous transactions have been received as juridical evidence. They were not original statements of the transactions to which they referred. They were not written by one who had taken part in or even been cognizant of those transactions. They were not contrary to the interest of the person who made them, nor did they relate to dealings with the party against whom they were offered. We have been unable to discern any legal principle which would render them evidential against the defendant, and we think they were properly rejected.

Another exception arose in this way: A witness produced as an expert by the plaintiff testified with regard to the feasibility, in 1848, of extracting zinc from the ore in controversy; and during his cross-examination he mentioned several scientific books, on which he, in part, based his opinion. The plaintiff then offered these books as evidence, to corroborate the witness, and they were excluded. The general rule on this subject is thus stated in 7 Am. & Eng. Enc. Law, 513: "Books of science are Inadmissible in evidence to prove the opinion contained in them; but if a witness refers to them as an authority, they may be received for the purpose of contradicting him." In Pinney v. Cahill (Mich.) 22 Am. Law Reg. (N. S.) 101 (12 N. W. 862), may be found a reference to many cases in which...