(18 Nev. 303)



Filed March 26, 1884.

Action to recover alleged balance due their foreman from a mining company. Opinion of court below reviewed, and judgment reversed for misinterpretation of facts in the case.

Appeal from the Third judicial district court, Esmeralda county.

P. Reddy and J. F. Boller, for appellant.

D. J. Lewis, Wells & Taylor, and Curler & Bowler, for respondent.

BELKNAP, J. During the periods mentioned in the complaint the defendant was operating a mine in Esmeralda county. Its general business was intrusted with a superintendent, A. J. Rhodes, who was also the proprieter of a store of general merchandise at Belleville, a point about seven miles from the mine. Plaintiff was foreman at the mine, and also conducted a boarding-house, at which the employes of defendant boarded. He purchased supplies for the boarding-house from Rhodes, and in his complaint alleges at various times loaned and advanced moneys to defendant and to its use. The complaint alleges several distinct causes of action arising upon these demands. The nature of the business relations between plaintiff and Rhodes, and the manner in which the transactions were conducted may be shown by extracts of plaintiff's testimony taken from the record. He said:

"During all the time that Mr. Rhodes kept the store at Belleville, namely. up to the last month of the year 1879, he traded with Mr. Rhodes, taking credit for his labor and claims against the company, and drawing goods, wares, and merchandise and money from Mr. Rhodes against said claims.”


"That he procured the signatures of the men, and put his own signature in receipt for labor performed for the months and the years mentioned in said exhibits (the pay-rolls) at the request of Mr. Rhodes, the superintendent, and that Mr. Rhodes agreed to pay them for their time, and to give them credit in his store for anything they wanted up to the amount of the claim each had."

Rhodes testified

"That Martin traded with him from September, 1875, up to the third day of May, 1878. I think that Martin drew all his supplies for his boardinghouse from witness' (his) store, and was charged in witness' books for all such supplies; that Martin would turn in his time and claims against the defendant to him, and that he would give Martin credit for it, and that he, witness, would take the company for it. Sometimes Martin would owe him, and

sometimes he would owe Martin; * * * that from the third day of May, 1878, up to the time he closed his store in Belleville, which was sometime in October, 1879, Martin continued to trade at his store, and afterwards traded for about three months at his store at New Boston; that Martin would sometimes pay the men the money for their time and bring it to witness and have it credited on the store-books, and that Martin would draw supplies against it; that the course of dealing was as follows: Martin was permitted to draw whatever he wanted out of his store, either money or goods, which was charged to Martin on his books. Whenever Martin had any claim against the defendant for his time, or the time that he, Martin, had purchased from the men, that he would take it in payment and credit Martin on the books with the amount; that the dealing was between him and Martin; and that he, witness, looked to the company to obtain his pay on these claims."

These were the only witnesses who testified upon this subject, and there is no conflict in their testimony. If we are to be governed by it, and we have no alternative, it is manifest that the judgment cannot be sustained, because plaintiff has continued to transfer all his demands against defendant to Rhodes so long as Rhodes continued store-keeping. Rhodes closed his store about the commencement of the year 1880. The testimony shows that since that time plaintiff has paid large sums of money to defendant's use; but the complaint admits credits aggregating $10,342, and there is nothing to fix the time when they were given. The total credits exceed the advances made since January, 1880, and, non constat, that defendant has not paid all of its indebtedness to plaintiff.

Upon the oral argument respondent claimed that an examination of the record would disclose the fact that the judgment given by the district court was for a balance due plaintiff after paying Rhodes, and that the transfer of demands to him was only to the extent of paying plaintiff's indebtedness. In his cross-examination Rhodes testified:

"That at various times while plaintiff was acting as foreman of the defendant, the witness, as superintendent of defendant, requested plaintiff to pay sums of money to men who were working for defendant, and that plaintiff did so; and that it was understood and agreed between witness and plaintiff that all such advances and board-bills of the men working for defendant were to be credited to plaintiff on the books of witness to the extent of what plaintiff might then owe witness."

If this piece of evidence established the fact that the demands. against defendant were transferred only to the extent of plaintiff's indebtedness to Rhodes, still there is nothing in the record tending to show a balance in favor of plaintiff. The judgment must be reversed for the reasons stated.

As some of the questions made upon this appeal may arise upon a retrial, it is proper that they should be settled now.

1. The pay-rolls offered in evidence were admissible. The number of days' work and the amount due each man, and set opposite his name, was in frequent instances altered, but the alteration was immaterial to the issue to which the proof was directed. The instruments purported

to be receipted monthly pay-rolls of defendant for a portion of the time embraced by the transactions between the parties, and were offered as tending, in connection with other evidence, to prove the fact that plaintiff, as well as others, were accustomed to receipt for the amounts due them each month, and, without receiving the money from defendant, take credit upon the books of Rhodes for the amount. No question of the number of days' labor performed each month, or of the amount due, was involved, but simply the course of business in the respect stated.

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2. The letters and receipts offered in evidence by plaintiff were admissible, the former as tending to establish an indebtedness; the latter, in connection with the oral testimony, as tending to prove payments made by plaintiff for defendant. The receipt of A. Mack & Co. must be excepted from this general statement, as there is no proof to connect this payment or matter with defendant.

3. The finding that $2,000 was loaned to defendant is unsustained by the evidence. No authority was shown in Thomas Mintie to borrow money for defendant, nor was it shown that defendant received the money. The statement in Coye's letter of July 13, 1881, does not identify this loan, but appears to refer to money paid to the men, and not to Mintie.

4. Plaintiff should not have been allowed his per diem for the time he was absent.

5. The finding touching the account stated is correct as the question is presented by the record. The objectionable matter is not itemized; if errors exist they do not affect all of the items of the transaction and invalidate the whole account. Whether under the pleadings the account is subject to attack, or whether the facts authorize its correction, are matters upon which we express no opinion, because the questions were not made.

The judgment and order of the district court are reversed, and a new trial ordered.

(65 Cal. 99)



Filed March 12, 1884.

The jurisdiction of the supreme court does not extend to an appeal from a judgment of the superior court affirming a judgment of the police court adjudging the defendant guilty of a misdemeanor, and imposing on it a fine as punishment.

In bank.

Appeal from the superior court of the city and county of San Francisco.

Doyle, Barber, Galpin & Scripture, for appellant.

The Attorney General, for respondent.

BY THE COURT. This is a motion to dismiss an appeal by defendant from a judgment of the superior court affirming a judgment of the police court adjudging the defendant guilty of a misdemeanor, and imposing a fine of $50. The case is not "a criminal case prosecuted by indictment or information in a court of record." Const. art. 6, $4. This court has no jurisdiction.

The appeal is dismissed.

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In a criminal case, after the testimony has closed and argument begun, it is in the discretion of the court to allow defendant to reopen his case for the purpose of introducing evidence on a plea of once in jeopardy, of which no evidence has been introduced, and refusal by the court is not ground for reversal.

Evidence of facts tending to connect defendant with the taking of the property named in the information is competent to prove larceny of said property by defendant.

Department 2.

Appeal from the superior court of Fresno county.

Rhodes & Merriam, for appellant.

The Attorney General, for respondent.

MYRICK, J. The information accused the defendant of the crime of grand larceny; and on being arraigned the defendant pleaded "not guilty," and "once in jeopardy." At the trial evidence was given for the prosecution and for the defense; but none of the evidence relates to the plea of once in jeopardy. After the district attorney had begun his opening argument to the jury, and was about to close, defendant's attorneys asked that they be allowed to reopen their case for the purpose of introducing testimony on the plea of once in jeopardy, and the request was denied. No error appears; it was a matter of discretion.

The evidence regarding the cigarettes was competent, for the reason that it tended to connect the defendant with the taking of the property named in the information; for this reason, doubtless, the court admitted it, notwithstanding the obscure manner in which the district attorney stated its object.

There is no error in the record.

Judgment affirmed.

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In a prosecution for grand larceny, if the act of taking the property is admitted, but a felonious intent denied, the question of intent is one for the jury.

Department 2.

Appeal from the superior court of Sonoma county.

The defendant in this case was accused of the crime of grand larceny. Defendant pleaded not guilty. He admitted the taking of money from the pocket of one Carmody, but denied any intent to steal the same. Evidence as to this intent was introduced on both sides. The court ruled that the question of intent was one for the jury, and instructed them if they found a felonious intent, to render a verdict of guilty. The jury found defendant guilty, and from the above ruling and instruction defendant appealed.

Henley & Oates, for appellant.

The Attorney General, for respondent.

MYRICK, J. The information accused the defendant and one Donovan of the crime of grand larceny. That the defendant Grider took

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