Fox

I concur in that portion of the judgment which is affirmed; but dissent from the opinion of the court wherein it is held that the evidence-is insufficient to support the finding of fact to the effect that 74.6 per cent of the car sample assay is a fair return to the Hale & Norcross Company. The actual return to this mining company by the milling company was but 52 per cent of the car sample assay. This was not. *430 enough. No argument or citation of facts is necessary to prove it. Everybody knows it. But the all-important question is, how much bullion in excess of this 52 per cent should have been returned to the mining company under the evidence found in this record? There is the rub. Mr. Lyman, superintendent of the Consolidated Virginia mine, and one of the principal witnesses for the defense, stated that he would hope to get a return of 65 per cent of the car sample assay. And, if I had been the trial judge, upon this and other evidence introduced, I should have recognized the justice of a return to the mining company to that amount at least. But the true rule to be invoked by a justice of this court, in determining the sufficiency of the evidence to support a finding of fact…

The Hale & Norcross Silver Mining Company is a corporation, organized under the laws of California, with its principal place of business at the city of San Francisco. It is the owner of one of the mining claims on the Comstock lode, in the state of Nevada, where for many years it has been' engaged in the business of mining gold and silver bearing ores.

The plaintiff, M. W. Fox, since the year 1887, has been at all times a stockholder of said corporation. In August and September, 1890, he addressed communications to its board of directors, and to the individual members of the board, charging, in substance, that for three years the corporation and its stockholders had been systematically plundered, and its property stolen, to the amount of more than $2,000,000, by means of a fraudulent conspiracy and combination between said directors and the owners or lessees of the mills employed in the reduction of the ores extracted from the company’s mine; that the devices resorted to in furtherance of the object of this conspiracy were the mixture of worthless rock with high-grade ores so as to obscure their value, and at the same time increase the quantity of material to be put through the…