APPEAL from a judgment of the Superior Court of the County of Mohave. Richard Lamson, Judge. Judgment affirmed.
Mr. E. Elmo Bollinger, of Kingman, Arizona, and Mr. Frank H. Love, of Los Angeles, California, for Appellant.
Mr. Carl D. Hammon, of Kingman, Arizona, and Mr. J. O. Reavis, of Bakersfield, California, for Appellee.
[58 Ariz. 45] ROSS, J.
This is an appeal by the Tom Reed Gold Mines Company, defendant, from a judgment for conversion in favor of P. H. Brady, plaintiff, and from an order overruling its motion for a new trial.
The claim of right to recover against defendant, as set out in the complaint, is that plaintiff, as the lessee of a portion of the Aztec Certer lode mining claim, situate in the San Francisco Mining District, Mohave County, Arizona, from the defendant as lessor, had mined, extracted and removed from said leased premises, ready for shipping, 4,617.56 tons of ore and had shipped to defendant and had been paid for 2,937.56 tons thereof; that on January 8, 1936, there remained on the leased premises 1,680 tons of ore so mined and ready for shipping, and on said date defendant ejected plaintiff from the leased premises and, between that date and February 6, 1936, converted said 1,680 tons of ore, to plaintiff's damage in the sum of $36,516.80.
Defendant answered and cross-complained. In its answer it admitted that plaintiff had mined and delivered to it 2,937.56 tons of ore and that it had paid for same as stipulated in the lease; denied
that plaintiff [58 Ariz. 46] had mined, extracted or removed for shipping 1,680 tons of ore, or any other amount, except the 2,937.56 tons it had paid for, and that the alleged 1,680 tons of ore was of the value claimed or any other value.
In its cross-complaint defendant alleged plaintiff had entered upon and taken from its premises and converted $5,000 worth of ore not included in or covered by the leased premises but from defendant's premises adjacent thereto. For a second cause of cross-complaint defendant alleged plaintiff had breached his agreement to work the mine "in a proper, skillful and minerlike manner" and that, by reason thereof, a cave-in resulted in the leased premises on or about February 2, 1936, preventing further operations, to defendant's damage in the sum of $17,737.38 and compelling defendant to expend $1,070 in reopening the level closed by the cave-in.
On July 16, 1940, the day after entry of judgment on this verdict, plaintiff acknowledged partial satisfaction of said judgment in the amount of $705.99 and authorized and requested the clerk to enter such partial satisfaction.
One of the errors assigned is:
"II. That the judgment herein and the verdict upon which said judgment is based are not justified by the evidence, not sustained by the evidence, contrary to the evidence and contrary to law,..." If by this assignment defendant expects this court to weigh the evidence where in conflict, we will have to disappoint it. The rule in such case is to accept the verdict as binding upon the court. Tom Reed Gold Mines Co. v. Brady, 55 Ariz. 133, 99 P.2d 97, 127 A.L.R. 906. However, under this assignment defendant asserts that there was no conflicting evidence as to the value of the ore alleged to have been converted. It is true, no witness for plaintiff testified as [58 Ariz. 47] to the value of such ore. It is also true that a witness for defendant testified he assayed six or seven samples of such ore and got values ranging from 70" to $2.80 per ton. The fact is, however, that the ore left by plaintiff in the stopes of the mine was broken from the same vein as was the ore which defendant accepted and paid for. There were very rich streaks in such vein, but the general mass therefrom was low-granded ore. Plaintiff had made 32 shipments to the defendant and been paid therefor.
When ore is converted, no one, except the party converting it and his agents, has first-hand knowledge of its money value. Acting upon that well recognized fact, both the plaintiff and cross-complainant relied upon the average value of the 32 shipments of ore to defendant, excepting three shipments included therein which were made up of high-grade ore. The defendant, in an effort to prove its damages by reason of ores it claimed plaintiff had taken from its property adjacent to the leased premises and ...