Robinson v. Goldfield Merger Mines Co.
| Decision Date | 05 March 1923 |
| Docket Number | 2519. |
| Citation | 213 P. 103,46 Nev. 291 |
| Parties | ROBINSON v. GOLDFIELD MERGER MINES CO. (CATLIN & POWELL CO., INTERVENER). |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; J. Emmett Walsh, Judge.
On rehearing. Former judgment of reversal affirmed.
For former opinion, see 206 P. 399.
Augustus Tilden, of Reno, for appellant.
L. D Summerfield, of Reno, for respondent.
In the former opinion the position taken was that the only question considered by the trial court in ordering a new trial was erroneously decided, and our order of reversal was restricted and limited to that one question. Upon petition for rehearing we were asked by respondent to pass upon the other grounds stated in its motion for new trial, in order that it might be informed as to whether the grounds stated therein were well taken. The respondent is entitled to know this, as the effect of the order of reversal ended the case adversely to respondent. Upon consideration of the entire record, we conclude that the order granting a new trial on the one question decided should not be construed as overruling the other grounds stated in the motion. Reno Mill Co. v Westerfield, 26 Nev. 332, 67 P. 961, 69 P. 899. The point was not raised on the former hearing, and we granted a rehearing to consider of the several grounds upon which the motion for a new trial was made, namely, the insufficiency of the evidence to support the decision, and that the decision is against law. The facts are fully stated in the former opinion, 206 P. 399, and we shall restate only so much thereof as necessary to make clear the errors of law now insisted upon.
It is admitted that the course of dealing, without exception between Catlin & Powell Company, brokers of New York City, and U.S. Waugh & Co., brokers of Goldfield, Nev., was that upon the filling of buying orders of stock for Waugh & Co., the Catlin & Powell Company would transmit the certificates, duly indorsed for transfer, to John S. Cook & Co., bankers at Goldfield, with draft attached, accompanied by a letter of instructions to deliver the certificates to Waugh & Co., upon the payment of the draft. The certificates in controversy were inclosed in a draft envelope, with a draft printed thereon, but not sealed, and inclosed in a mailing envelope with a letter containing the usual directions, and delivered to the stenographer of Catlin & Powell Company, with directions that she transmit the same by registered mail to John S. Cook & Co. But the stenographer, by reason of her mistake and confessed error, transmitted the inclosures, on the 22d day of April, 1915, to Waugh & Co. by registered mail, instead of to John S. Cook & Co., contrary to the instructions as given her by Catlin & Powell Company. The certificates, draft, and letter thus addressed were received by Waugh & Co., in due course of mail, on the 27th day of April, 1915, as shown by the registry receipt. On the 28th day of April, 1915, Waugh & Co. sold the stock represented by said certificates to Thomas S. Robinson & Co., in the regular course of trade, for value, and, without notifying John S. Cook & Co. or Catlin & Powell Company, passed title thereto by delivery to Thomas S. Robinson & Co.
Applying the rule of negligence discussed in the former opinion to these undisputed facts, if it can be legally determined that the certificates thus appropriated and sold by Waugh & Co. were stolen, Thomas S. Robinson & Co. are not protected as innocent purchasers, because the negligence or carelessness of respondent's stenographer of itself was not the proximate cause of the theft, though it afforded an opportunity for its perpetration.
"A person who does not lock up his goods, which are consequently stolen, may be said to be negligent as regards himself, but inasmuch...
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