Fox

This action is brought by Fox, a dissatisfied stockholder of the Consolidated California & Virginia Mining Company (a mining corporation), in behalf of the corporation against the Comstock Mill & Mining Company, J. W. Mackay, J. P. J ones, and the Consolidated California & Virginia Mining Company. Mackay and Jones are the real defendants in interest.

By the complaint conspiracy and fraud are alleged against Mackey and J ones in the milling of the ores of the Consolidated California & Virginia Mining Company, and an accounting is asked. Under the contract entered into between the mining company, and the milling company and J ones, by which the ores were to be milled, it was provided: “Said ores, rock, and earth shall be worked in the usual and ordinary manner of working like ores, and returns therefrom shall not be less than seventy (70) per cent of the pulp assay.”

This appeal is taken from the judgment rendered against plaintiff, and the sole question raised revolves around a single allegation of the complaint, taken in connection with certain denials and allegations of the answer relating to the same subject matter. Plaintiff alleges that seven hundred and thirty-four thousand…