« ForrigeFortsett »
and in guarding the interests of the public, and especially of those engaged in navigating the rivers that would be spanned by the structures authorized by said act. We concur with the court below that we must look to the spirit and reason of this provision of the law, and construe it with reference to its evident purpose to connect with the exercise of the privileges therein granted such limitations as will guaranty protection to the navigating interests affected by the proposed legislation. Can it be said that the object and purpose of the law was simply that a bridge should be built across the Missouri river at Kansas City for the benefit of the railroad company alone? Manifestly not, for in that case it would have been only necessary to grant the privilege of building a bridge at the place designated, without any limitation or condition as to its mode of construction, except such as the discretion of the company might determine. In what we have said we do not wish to be understood as assenting to the proposition that the strict letter of the statute supports the contention of the plaintiff in error. The word "span" does not, even in architecture, always mean a part of a structure. It is, perhaps, as often used to donate the distance or space between two columns. Such is the obvious import of the term as used in the act under consideration; not merely as a part of the structure itself, but the measure of the distance between the piers of the bridge,the measure of the space left open for navigation purposes. A similar provision to this may be found in an act of the Illinois legislature authorizing the construction of a bridge across a river, and the word "space" is used, where in this act we have the word "span." It is said that the act nowhere defines the precise direction of the bridge, but leaves that to the discretion of the company. The answer to this is, that by the express terms of the act of congress the piers of the bridge across the river are required to be placed parallel with the current. To the word "across," unless it is qualified by some prefix, as "diagonally" or "obliquely," there is attached, in ordinary use, but one meaning, and that is a direction opposite to length. This is especially true when it is used in connection with parallel lines. When the piers are placed parallel with the current of the river they are parallel with one another, and the faces of the piers may properly be considered as so many parallel planes. The spans of the bridge are to be not less than 160 feet in length in the clear on each side of the pivot-pier of the draw,—that is, from the face of the central pier to the face of the next adjacent pier must be a distance of not less than 160 feet in the clear. Now, it is an elementary principle of mathematics that "the distance between two parallel planes is measured on a perpendicular to both." But if there be any doubt as to the proper construction of this statute, (and we think there is none,) then that construction must be adopted which is most advantageous to the interests of the government. The statute, being a grant of the privilege, must be construed most strongly in favor of the grantor. Gildart v. Gladstone, 11 East, 675; Bridge v. Bridge, 11 Pet. 544; Railroad Co. v. Litchfield, 23 How. 66; The Binghampton Bridge, 3 Wall. 75; Rice v. Railroad Co., 1 Black, 380; Railroad Co. v. U. S., 92 U. S. 733; Fertilizing Co. v. Hyde Park, 97 U. S. 660. As persuasive authority in support of the conclusion we have reached with reference to this bridge, may be cited the case of Insurance Co. v. Bridge Co., 6 McLean, 70; also the case of Packet Co. v. Railroad Co., 1 McCrary, 281, the latter being a decision of the circuit court of the United States for the Western district of Missouri in a case between the identical parties to this suit, and concerning this identical bridge. In this last case Judge MCCRARY says: "If it be granted that a measurement along a line which deviates from a course directly across the channel is the proper one, then it would follow that the actual passageway might be less than that required by the act. The greater the deviation from such a direct line, the less would be the available space between the piers. Such a construction of the act would defeat the main purpose which congress had in view in its enactment." We are therefore of the opinion that
the supreme court of the state of Missouri committed no error in its construction of the act of congress under consideration.
A reversal of the judgment brought here for review is also asked upon the ground that the supreme court of Missouri erred in sustaining the circuit court of Jackson county in giving to the jury what is called "Plaintiff's Instruction No. 1." This instruction is as follows: "The jury are instructed that unless the bridge mentioned in the answer had piers which were parallel with the current of the river, and spans of not less than 160 feet in the clear on each side of the pivot-pier, then said bridge is an illegal structure, and an unlawful obstruction to the navigation of the Missouri river; and if the jury believe from the evidence that it was not such a bridge, and further believe that the plaintiff's boats, Alice and St. Luke, or either of them, while attempting to pass through the draw of the bridge in charge of pilots exercising usual and ordinary care, struck the draw-rest of the bridge, and were thereby damaged, then the jury will find their verdict for the plaintiff as to such boat or boats." It is said that by sustaining this instruction the supreme court of Missouri held that the mere fact that the bridge had not been constructed as required by the statute rendered the railroad company liable, irrespective of the question whether the improper construction caused the accident; and it is urged that such holding is erroneous. This, however, does not present any federal question for the consideration of this court, and therefore we decline to examine into its merits. Murdock v. City of Memphis, 20 Wall. 590; Allen v. McVeigh, 107 U. S. 433, 2 Sup. Ct. Rep. 558. Upon the only questions in this case cognizable by this court, the judgment of the supreme court of the state of Missouri is affirmed.
SOUTHERN DEVELOPMENT CO. OF NEVADA v. SILVA.
EQUITY-RESCISSION OF CONTRACT-FRAUDULENT REPRESENTATIONS.
Defendant in selling his mine, expressed his opinion of the amount of ore "in sight," of the amount in a certain chamber; thought the mine was worth $15,000, and that the ore body would be extensive,-which representations did not appear to have been relied on by the purchaser; and represented that the purchasers had seen everything in the mine, while in fact there were certain plugged-up drill-holes which they had not seen; but there was no direct evidence that defendant was himself aware of the holes, and he denied knowledge of them in his testimony and sworn answer. Held, that the evidence failed to support a bill to rescind the sale on the ground of fraudulent representations.
Appeal from the circuit court of the United States for the Northern District of California.
Wm. M. Stewart, A. T. Britton, and A. B. Browne, for appellant. J. P. Langhorne and John H. Miller, for appellee.
LAMAR, J. This is a bill in equity to rescind a contract of purchase of a silver mine on the ground of fraudulent representations, and to recover the consideration paid. The suit was commenced originally in the superior court of Inyo county, Cal., on the 8th of May, 1884; but on account of the diverse citizenship of the parties, the plaintiff being a corporation organized under the laws of Nevada, and the defendant a citizen of California, it was removed into the United States circuit court. Demurrers to the original bill and to an amended bill having been sustained, the present "second amended" bill of complaint was filed. Answer was filed by defendant, replication by complainant, and issue was joined. Testimony was taken, and the case was heard, resulting in a decree dismissing the bill on the 14th of March, 1887. It appears from the record that on the 15th of March, 1884, the appellant (who was the complainant below) purchased from the defendant a mining claim, known as the "Sterling Mine," together with other mining property, all situated in Inyo county, Cal., paying him therefor the sum of $10,000. On the v.8s.c.-56
8th of May, 1884, the original bill of complaint was filed, charging, in substance, that complainant was induced to purchase said mine and mining property solely upon the representations made by Silva as to its condition, extent, and value; that such representations were made to H. M. Yerington, the president of said complainant company, and to one Forman, a mining expert in his employ, in January, 1884, when an examination of said mine was made by them; that said representations were false and fraudulent, and were well known to the defendant at the time to be such; and that said representations were, in substance and in a somewhat different order, as follows: (1) That there were 2,000 tons of ore in the mine; (2) that the bottom of what is called the "Ore Chamber" was solid ore, as good as the ore exposed on the sides of the chamber; (3) that there were not less than 500 tons of ore in and about the said ore chamber; (4) that the mine was worth $15,000; and (5) that, after going through the mine, the defendant represented to said Yerington and Forman that he had shown them all the work which had been done in or about the mine that would throw any light upon the quantity of ore therein.
The answer of the defendant is direct, positive, and unequivocal in its denials of the allegations of the bill; and, as an answer on oath is not waived, unless these denials are disproved by evidence of greater weight than the testimony of one witness, or by that of one witness with corroborating circumstances, the complainant will not be entitled to a decree; and this effect of the defendant's answer is not weakened by the fact that the equity of the complainant's bill is the allegation of fraud. Vigel v. Hopp, 104 U. S. 441; 2 Story, Eq. Jur. § 1528; 1 Daniell, Ch. Pr. 844. The burden of proof is on the complainant; and unless he brings evidence sufficient to overcome the natural presumption of fair dealing and honesty, a court of equity will not be justified in setting aside a contract on the ground of fraudulent representations. In order to establish a charge of this character the complainant must show, by clear and decisive proof-First, that the defendant has made a representation in regard to a material fact; secondly, that such representation is false; thirdly, that such representation was not actually believed by the defendant, on reasonable grounds, to be true; fourthly, that it was made with intent that it should be acted on; fifthly, that it was acted on by complainant to his damage; and, sixthly, that in so acting on it the complainant was ignorant of its falsity, and reasonably believed it to be true. The first of the foregoing requisites excludes such statements as consist merely in an expression of opinion or judgment, honestly entertained; and, again, (excepting in peculiar cases,) it excludes statements by the owner and vendor of property in respect to its value.
The evidence in the case shows that in the development of this mine a tunnel, called the "Sterling Tunnel," had first been dug. At a distance of about 140 feet along the line of this tunnel, from its mouth, there are branches running easterly and westerly. About 60 feet from the main tunnel, in the eastern branch, winze No. 1 starts down. About 38 feet below the level of the tunnel, a level, known as the "38-feet level," starts off from this winze, and at the bottom of the winze, a distance of about 82 feet vertical below the main tunnel, there is another level, known as "82-feet level." In the easterly branch of the tunnel, about 30 feet from winze No. 1, there is another winze starting downward, inclining to the southeast as it goes down. This winze is numbered 2, and is connected with the 38-feet and the 82-feet levels. Intermediate between these levels is another level, known as the "55-feet level," which opens out to the eastward of winze No. 2 into a chamber about 15 feet long and about 8 feet wide. In the south-east corner of this chamber was a little hole or shaft, extending downward a few feet only. In sinking winze No. 2, Silva struck an ore body at a point opposite the 38-feet level. It was irregular in shape, dipping at an angle of about 45 degrees. Commencing at a point, comparatively speaking, it increased gradually as it descended, and
was in form somewhat like a pyramid. At its base it measured 4 or 5 feet across, and it was about nine feet long. The surface of this inclined pyramid formed the floor or bottom of the chamber. There was, however, a small space between the base and opposite foot-wall, which is called the "bottom" of the chamber by complainant's witnesses, and it is the "bottom" spoken of in the bill. The ore comprising this pyramid was carbonate, and, being friable, had slacked down over the face of the pyramid to the bottom, partially covering it, and partially filling up the little hole or shaft in the south-east
As to the first alleged representation, as classified above,-viz., that there were 2,000 tons of ore in sight in the mine, and that Yerington relied upon such statement when he made the purchase,--the proof utterly fails to establish either that Silva made the statement, as a statement of fact, or that Yerington relied upon such statement, even had it been made. Silva, both in his answer and in his testimony, denies ever having made the statement, and the testimony of Yerington himself is to the effect that Silva's statement was qualified by the phrase "in his judgment." This, then, is shown to have been nothing more than an expression of opinion on the part of Silva as to the quantity of ore in sight in the mine. But, even if Silva had made the statement imputed to him in the bill, there is abundant evidence to show that Yerington did not rely upon it in the purchase of the mine. Yerington's own evidence, on this point, is against him. He testifies that he did not believe that there were more than 1,000 tons of ore in the mine, and that Forman agreed with him on that point. And he further testifies that, valuing this ore at 32 ounces of ore and 45 per cent. of lead per ton, (which it appears was its approximate value, as determined by several assays,) and calculating that there would be 1,000 tons of ore there, the mine would be worth $10,000,the sum he actually gave for it. This lacks much of coming up to the rule that the complainant must have been deceived, and deceived by the person of whom he complains. Atwood v. Small, 6 Clark & F. 232; Pasley v. Freeman, 3 Term R. 57. Besides, the quantity of ore "in sight" in a mine, as that term is understood among the miners, is at best a mere matter of opinion. It cannot be calculated with mathematical, or even with approximate, certainty. The opinions of expert miners, on a question of this kind, might reasonably differ quite materially. In the case of Tuck v. Downing, 76 Ill. 71, 94, the court say: "No man, however scientific he may be, could certainly state how a mine, with the most flattering outcrop or blow-out, will finally turn out. It is to be fully tested and worked by men of skill and judgment. Mines are not purchased and sold on a warranty, but on the prospect. The sight' determines the purchase. If very flattering, a party is willing to pay largely for the chance. There is no other sensible or known mode of selling this kind of property. It is, in the nature of the thing, utterly speculative, and every one knows the business is of the most fluctuating and hazardous character. How many mines have not sustained the hopes created by their outcrop!" We approve the position of the court below, that "Yerington and his expert, Forman, were as competent to judge how much ore there was in sight' as Silva was. They were no novices in matters of that kind. This misrepresentation, if such it be, does not contain either the first, fourth, or fifth element stated by Pomeroy as essential elements in a fraudulent misrepresentation."
As stated above, the substance of the allegation of the bill is that Silva represented that the bottom of this ore chamber, which was covered with loose ore slacked down from the pyramid, was composed of ore as good as that exposed on the sides of the chamber. Silva, in his answer, expresly denies ever having made such statement. Forman testifies that with a little prospecting pick he had with him he raked through the dirt and loose ore that had slacked down, to see if it would reach the bottom of the ore chamber, but that it
would not. He further says: "I asked Silva how the bottom was; if he had sunk below there. He said, 'No.' I said,How is the bottom. You, as a miner, know it is a suspicious thing to see a bottom covered up, or anything of that kind.' He said the bottom was as good or better than any ore which we saw in the chamber." Yerington at first testifies that Silva, in reply to a question by Forman, stated that this floor was solid ore; but he says that he does not think any comparison was made between that ore and the ore in the sides. of the chamber, as narrated by Forman. On the next day, however, Yerington having, as he says, refreshed his memory,-"and I [he] had the means of doing it," was positive that the conversation between Silva and Forman at that time was as Forman afterwards stated it. Silva, in addition to his positive denial in his answer, testifies that "there never was a word said about that. They asked me this: What I thought of the ore body?' and I said I thought it would be extensive.' I thought so at the time, and I think so yet. The witness Eddy, who was present all the time in the ore chamber, except when he went to the 38-feet level to get a pick, does not know anything about a conversation such as Yerington and Forman narrate. On this point, then, the testimony of Silva is directly to the contrary of that of Yerington and Forman. Certain other material facts in the case seem to indicate that there is just as strong probability that Silva's statements in this matter are true as that those of Yerington and Forman are true. In the bill Yerington alleged, under oath, that Silva had discovered the fact that the bottom of the ore chamber was not composed of ore, and had afterwards covered the bottom with ore, vein-rock, and matter,-in other words, had "salted" the mine. There is no evidence in the record to prove this, or tending to prove it; on the contrary, the evidence of Yerington himself, and of the other witnesses who were examined on that point, is all to the effect that the ore covering the floor of the chamber had slacked down from natural causes in fine particles like wheat. Nor is there such evidence to show that Silva knew the character of this floor, or of the extent of the ore vein, or deposit, (as it afterwards turned out to be,) as would justify the interposition of a court of equity to set aside the contract on the ground of fraudulent representations. He had come onto the ore in excavating from the top. The sides of the ore chamber contained some ore of a good quality, and he had never demonstrated the extent and amount of ore in the pyramidal wedge in the side of the chamber. It is shown by the evidence of Yerington himself that, in the side of a drift running westerly from the ore chamber, there was ore which appeared to be continuous with the body of ore in the chamber; so that the statement Silva said he made,-viz., that he thought the ore body would be extensive,—at least, appears reasonable. Upon all the facts and circumstances apparent of record, he might have made the statement he says he made, and believed he was telling the truth. For there is also some evidence to the effect that Silva had commenced to run a drift from the bottom of winze No. 1, for the purpose of striking and cutting the supposed downward extension of the ore body in the chamber; and this, before the examination of the mine by Yerington and Forman. After the sale of the mine, Coffin, the superintendent for the complainant company, when he commenced work in the mine, started in where Silva had left off in this drift, and carried it immediately beneath the ore chamber, entering the chamber by an up-raise. Then it was that the discovery was made that the ore body, instead of being a continuous ledge or lead, was merely a deposit. Furthermore, the testimony of Yerington and Forman, as regards the little hole or shaft in the south-east corner of the chamber, is directly opposed by the testimony of Silva and Eddy. Both Yerington and Forman testify that this little shaft was completely filled up with dirt and loose ore; while Silva and Eddy both testify that it was not so filled up, but that both Yerington and Forman stood in that shaft, and took samples of ore from it. It is thus seen that the evidence on this material point does not