Paul v. Cragnaz

• Decision Date: 30 April 1900
• Docket Number: 1,565.
• Citation: 60 P. 983,25 Nev. 293
• Parties: PAUL v. CRAGNAZ.
• Court: Nevada Supreme Court

60 P. 983

25 Nev. 293

PAUL v. CRAGNAZ.

No. 1,565.

Supreme Court of Nevada

April 30, 1900

On rehearing. Denied.

For former opinion, see 59 P. 857.

A. E Cheney and O. J. Smith, for appellant.

Thomas Wren, for respondent.

BONNIFIELD C.J.

The defendant petitions for a rehearing, and suggests that the court overlooked certain points involved in the appeal. We considered all such points, but thought that it was not worth while to notice them in the written opinion. If we understand the petitioner's contention, it is, substantially, that the court below struck out all testimony of ore mined prior and subsequent to plaintiff's lease; that then nothing was left in the case on which the jury could base a verdict for the plaintiff, and therefore the court below erred in denying defendant's motion for a nonsuit. In our opinion the record does not show that all such testimony was stricken out, but it shows to the contrary. Besides, in the defendant's statement on motion for new trial he assigns as error, to wit: "(14) The court erred in denying defendant's motion to strike out all testimony of the witness Larini concerning ores mined on leases prior or subsequent to plaintiff's lease." We were of opinion, and still entertain it, that, if all the testimony of ore mined prior and subsequent to the term of plaintiff's lease had been stricken out, the court would not have been justified in granting a nonsuit. For the undisputed testimony is that, in the month of April of the plaintiff's term under his lease the defendant extracted about 100 tons from one body of ore and about 80 tons of ore from another body in said mine; that at that time the market price of lead was $3.30, and it appears from the evidence that when lead was at the price said mine could be worked at great profit. And it is alleged in the complaint that during the year between June 13, 1896, and June 13 1897, being the term of plaintiff's lease, the "defendant extracted from said mining claim, and sold gold, silver, lead ore, of the value of $10,000." The allegation that "defendant extracted from said mining claim gold, silver, lead ore, of the value of $10,000," between said dates, is not denied by the answer; and when the motion for nonsuit was made and denied, the fact alleged as aforesaid stood admitted, and still stands so.

Second ground for rehearing: The petitioner says: "The point made by the appellant in his opening brief, at page 18, and which seems to have been overlooked, is that there is a material and recognized distinction between profits to an established business and a prospective one, and that actual loss by interruption of an established business may be recovered, while prospective loss for a business to be entered into is denied." The petitioner cites authorities and argues in support of the above contention through several pages of typewriting. We are of opinion that the business of mining on the Homestake mine was pretty well established, and that the evidence shows that the profits thereof prior, during, and subsequent to plaintiff's lease were very great. The uncontradicted evidence is that the defendant mined 7,000 tons of ore prior to plaintiff's lease; that the mine was profitably worked by lessees in 1893, 1894, and up to August, 1895; that, during the year next after plaintiff's lease expired, there were extracted by defendant's lessees 1,215 tons from the ore body, which the plaintiff proposed and intended to work, and which was of great net value. And it is shown by the pleadings that the defendant mined ore of the value of $10,000 during the plaintiff's said term. Oscar J. Smith testified: "This is the most desirable smelting ore in the world. High percentage of lead, and no undesirable ingredients." We think that the contention of the petitioner that mining on said mining claim was not an established business, and the conclusions he draws therefrom, are without merit.

Third ground: Petitioner says the appellant did except to the oral charge of the court, for the reason that it did not correctly state the law applicable to the case; and he submits "that, as far as the oral charge of the court is concerned, the rule of McGurn v. McInnis ought not to be applied, and the objection heretofore presented to that charge should be considered." The oral charge contained several propositions, and it was excepted to as a whole or in gross. We think the rule is well established that in such case, if any portion excepted to is sound, the exception cannot be sustained. Morrill v. Palmer (Vt.) 33 A 829, 33 L. R. A. 411, and cases cited. "Exceptions should be specific, and should be directed, not to the charge as a whole, but to the portion or portions thereof which are considered objectionable. It is only where the charge is erroneous in its whole scope and meaning, or where the charge, in effect, asserts but a single proposition, that a general exception will be available." 8 Enc. Pl. & Prac. 257. See citations given of many cases in 25 state courts, and numerous cases in the federal courts. "If an exception is taken to an entire charge, containing several distinct and separate propositions, or in gross to a series of instructions, the exception will be unavailable if any one of the propositions in the charge or any of the instructions is correct.' Id. 259, and cases cited...