San Fernando Copper Mining & Reduction Co. v. Humphrey

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The action was brought to recover money which the plaintiff in error alleged that it was compelled to disburse in prosecuting proceedings to recover the possession of mining properties situate in the republic of Mexico, to which the defendant in error had held the legal title in trust for the plaintiff in error, and which, in violation of said trust, he had conveyed to another. The complaint alleges that in the prosecution of such proceedings the plaintiff in error has been compelled to expend in attorney’s fees and costs of court, the sum of $10,-000. It alleges further, it is true, that the plaintiff in error has, by the fraudulent acts and conduct of the defendant in error, “been damaged in the sum of $20,000,” but there is no averment of facts in the complaint showing that damages have been sustained further or‘otherwise than in the prosecution of the said proceedings to recover possession. There is no allegation that the plaintiff in error has lost any property through the acts of the defendant in.error, and no information is afforded by the complaint either of the value of its properties, or of the result of the actions alleged to have been prosecuted for the recovery of the same. The Circuit Court has distinctly found that no moneys were paid out by the plaintiff in error for the prosecution of the alleged actions in the republic of Mexico. This finding under sections 649 and 700 of the Revised Statutes stands as the special verdict of a jury. No error is assigned to the admission or exclusion of evidence bearing upon that issue in the case. It is assigned that the court erred in making the finding, but such a finding is not subject to revision by this court if there were any evidence upon which it could be made. Dooley v. Pease, 180 U. S. 126 , 21 Sup. Ct. 329, 45 L. Ed. 457 ; St. Louis v. *301 Rutz, 138 U. S. 241 , 11 Sup. Ct. 337, 34 L. Ed. 941 ; Runkle v. Burnham, 153 U. S. 225 , 14 Sup. Ct. 837, 38 L. Ed. 694 ; McIntosh v. Price, 121 Fed. 716 , 58 C. C. A. 136 ; Empire State M. & D. Co. v. Bunker Hill & Sullivan M. & C. Co., 114 Fed. 417 , 52 C. C. A. 219 . The question so submitted to the court was one of fact to be decided on the evidence. It is not our province to review the evidence further than may be necessary to discover that the case is not one wherein there was no evidence to justify the finding. We find from the bill of exceptions that Henry F. Wood, the secretary of the smelting company, and one of the trustees of the plaintiff in error, testified that the latter corporation had paid over $6,000 to various attorneys “in order to recover possession of one-half of the San Fernando mine, San Fernando No. 1, San Fernando No. 2, San Fernando iron mine, and Hecla Rosario and Calumet Rosario.” This is all the evidence in regard to the payment of such expenses. There is nothing in the evidence contained in the bill of exceptions to show the date at which the money was expended— whether during the 10 days that intervened between the conveyance from the smelting company to the plaintiff in error and the commencement of the present action or afterward, but it would seem to be indicated from some of the evidence offered that, if expended, it was expended afterward. Neither is there anything in the evidence to show the nature of those proceedings, in which of them or in what manner the money was expended, or whether the proceedings were properly instituted or were successfully conducted. The trial court found specially, and correctly, we think, upon the evidence in the-case, that the defendant in error had never held the Hecla Rosario and the Calumet Rosario in trust for the plaintiff in error or its grantor. Money paid .out in the effort to recover the possession of those claims could not, in any event, become the basis of a charge against the defendant in error. The evidence does not inform us how much of the $6,000 so said to have been expended in attorney’s fees and costs of court was expended to recover the possession of those two mines. The evidence of damages must in every case be clear and explicit, and must be such as to demonstrate with reasonable certainty that injury has been sustained by the plaintiff in the action by reason of the acts complained of. We cannot see that the court erred, in view of the evidence presented in the bill of exceptions, in finding that no money had, in consequence of the fraudulent acts or conduct of the defendant in error or otherwise, been expended by the plaintiff in error for attorney’s fees or court expenses in proceedings to recover the possession' of the properties which it owned. From the bare statement of a witness that a certain sum of money had, at the time of taking the testimony, been paid out by the plaintiff in error for attorney’s fees and costs of court, in the effort to regain the possession of properties which the defendant in error, in violation of his trust, had conveyed away, it does not necessarily follow that the sum so paid is recoverable as damages. The finding that lire plaintiff in error sustained no damages is conclusive of the whole right of action, and relieves us from the necessity of considering the numerous assignments of error as to other issues in the case. The judgment will be affirmed.