Patrick v. Graham

• Decision Date: 06 January 1890
• Parties: PATRICK el al. v. GRAHAM et al
• Court: U.S. Supreme Court

132 U.S. 627

10 S.Ct. 194

33 L.Ed. 460

PATRICK el al. v. GRAHAM et al.

January 6, 1890.

T. M. Patterson and C. L. Thomas, for plaintiffs in error.

A. W. Rucker, for defendants in error.

MILLER, J.

This is a writ of error to the circuit court of the United States for the district of Colorado. In that court, Graham and Guggenheim sought to recover of Patrick and others the value of certain mineral ores taken from the Minnie lode mining claim of the plaintiffs, and converted to their own use, alleging that the defendants were guilty of a trespass, and that the quantity taken amounted to 500 tons of gold, silver, and lead bearing ore, of the value of $60,035. To this the defendants answered, admitting that plaintiffs were owners in fee of the Minnie lode Mining claim, but denying that they were sole owners of said claim, and insisting that Samuel Harsh was a co-owner and co-tenant with them. They deny the trespass and conversion of the 500 tons, or any quantity, of the ore, and deny that the ore was of the value of $60,035, or any other sum. A replication was filed by plaintiffs, denying the co-ownership of Harsh, and the cause came on for hearing, and was submitted to a jury, who found in favor of the plaintiffs, and assessed their damages at the sum of $20,779. A motion was made to set aside this verdict and grant a new trial, which was overruled, and a judgment entered for the amount of the verdict in favor of plaintiffs. To this judgment the present writ of error is prosecuted. It seems to have been conceded at the trial that the defendants, who owned the adjoining mineral claim, called the 'Colonel Sellers Lode,' in pursuing that load, had broken into the vein of the plaintiffs, known as the 'Minnie Lode,' which was the prior and superior claim, and that they had taken therefrom a very considerable quantity of valuable ore, which they had mixed with the ore from their own lode, and converted to their own use, by selling it with theirs. The only question in contest before the jury was the rule by which the damages of the plaintiffs should be ascertained. As to that subject, the plaintiffs took one or two exceptions to the ruling of the court in regard to the admission of testimony.

The ground of the first assignment of error is that the court admitted, against the objection of the defendants, certain testimony of Meyer Guggenheim, one of the plaintiffs. In his testimony, Guggenheim undertook to detail a conversation which he had had with Patrick and Whiting, two of the defendants, before the bringing of the suit, and with regard to the trespass. The question was asked him: 'What was said between you upon the subject, commencing with the first conversation you had, if you had more than one? State what the conversation was.' To this question, 'the defendants, by counsel, then and there objected on the grounds ___.' But the court overruled the objection, and permitted the witness to answer. In his answer, he stated that Patrick admitted that they had mixed the ores from the Minnie mine and from the Colonel Sellers mine, and he said that he had written to the parties in control of the mine that they should get off the ground. The objection taken here to this testimony is that it was part of a conversation had with a view to a compromise of the controversy, and that it could not be used as evidence against the party for that reason. The testimony itself, being evidence of the conversion of the ore by the defendants, with a knowledge that it was the property of plaintiffs, was pertinent as to the measure of damages. It was, therefore, only to be excluded, if at all, on some ground other than its want of relevancy to the issue. The record before u does not show that the defendants, at the time of the trial and at the time that the objection was made to the introduction of this evidence, gave any reason at all why it should be rejected; much less the reason which they now insist on. It cannot be permitted that, after the case has gone to a hearing, testimony submitted to the jury, and a verdict rendered, a party, for the first time, shall state a reason for his objection to that evidence which would make the objection good. The record is precisely as we have copied it, showing that, while defendants 'then and there objected on the grounds ___,' the record is...