cial verdicts both sides moved for judgment. The plaintiffs moved for judgment on the verdicts and special findings by the jury. The defendant moved for judgment notwithstanding the verdict. The plaintiffs had judgment for $105,577.55 and costs and interest. The amount of the judgment was determined by the court from the facts found by the jury by their special verdicts. From such facts the court reached the conclusion, briefly stated, as follows:

of on the former appeal, and such disposition the court. The jury returned answers thereof such item carried with it, as a necessity, to, and upon a return of the jury's said sperelief from accounting for the proceeds of the sale of the "Buckeye" claim. The compromise of that item effected a settlement for the proceeds of the sale of the "Buckeye" claim. At the time such settlement was had the proceeds of such sale consisted of money, and Julia Cunningham, as the representative of Patrick Cunningham, deceased, was legally entitled to recover the same, or discharge the debtor with the approval of the probate court. This occurred. The statute of limitations bars further recovery by accounting for the proceeds of the sale of the "Buckeye." The net result of the former appeal was to finally dispose of the item in the alleged account arising from the said sale of the "Wagner" group of five claims, the "Giberalta" and the "Buckeye" claims; also to finally dispose of the claim of Julia Cunningham as the surviving wife and heir at law of Patrick Cunningham, deceased-the assigned claim of Julia Cunningham-on the ground of laches.

The alleged account being thus modified, the cause was remanded to the lower court for the determination by that court of the defendant's duty to account to the plaintiffs as the minor heirs at law of Patrick Cunningham, deceased, for their proportion of the net proceeds of the sales of the "Irish Mag," "George Washington," "Old Republican," and "Angel" mines sold November 9, 1899, and for which $200,000 was thereafter paid as one principal item; and for their portion of the net proceeds of the sale of the "Hattie Manchester," "Belflower," "Smogler," and "Supplement," sold for a gross consideration of $300,000, as another principal item; and their portion of the net proceeds of the sale of the "Leo" and "Roy" claims, sold for a gross consideration of $169,112, as a third principal item. The question of damages for the detention of any money which may have been received by the trustee and detained by him, if such was a fact, was left open.

With this brief reference to the effect of the former decision, I will proceed to discuss the controversies presented on this appeal.

The plaintiffs amended their complaint before the termination of the last trial in the lower court. The plaintiffs state that the amendments made consist of three important features: (1) Affecting the acquisition of the four claims of the “Irish Mag" group; (2) affecting the "Leo," "Roy," and "Supplement"; and (3) affecting the amount of damages for detention.

That at the time of the death of Patrick Cunningham he owned an equitable one-half interest in the "Irish Mag," "George Washington," "Angel," "Old Republican," "Belflower," "Smogler," and "Hattie Manchester" mines, and as his separate property he owned said interest in the "Irish Mag," "George Washington," "Old Republican," and "Angel," which he acquired prior to his marriage, and he acquired said interest in the "Belflower," "Smogler," and "Hattie Manchester" after his marriage, and said interest was at the time of his death community property; that Martin Costello held the legal title to all of the aforesaid claims, subject, however, to a trust in favor of Patrick Cunningham as to said equitable onehalf interest therein; that the trust in the case of the "Hattie Manchester" was an express trust, and that the trust in the other named claims was a resulting trust, arising by reason of equal contributions by said parties toward the purchase of said six claims; that the releases executed by Julia Cunningham as the guardian of the estate of plaintiffs, minors, etc., were ineffective as releases of said minors' rights in the said claims; that plaintiffs are entitled to recover from defendant one-half of the net proceeds of the sale of the "Irish Mag," "George Washington," "Old Republican," and "Angel" claims, less a life interest in one-third of such sum, "which amount so to be recovered has been fixed by an accounting held by stipulation since the verdict herein at the sum of $49,702.55"; that plaintiffs are entitled to recover one-fourth of the net proceeds of the "Belflower," "Smogler," and "Hattie Manchester." The "said one-fourth has been determined by an accounting held by stipulation since the verdict herein to be the sum of $55,875," with interest on the said sums from the 26th day of March, 1912, the date of said accounting, until the 20th day of September, 1915, the agreed date of rendering judgment, at the rate of 6 per cent. per annum, and at the legal rate thereafter until

Such seems to be the effect of the said satisfied. amendments, generally stated.

The defendant appeals from the judgment Upon the pleadings so amended and the and order refusing a new trial. Such appeal, reply, original reply abandoned, the cause as is evident, only attacks that portion of the went to trial. At the conclusion of the evi- judgment which forces an accounting for the dence a large number of interrogatories were net proceeds of the sale of the "Irish

can," "Angel," "Belflower," "Smogler," and he purchased an undivided one-half interest "Hattie Manchester" claims, and does not attack the judgment in the particular of the remaining other claims, as it does not require an accounting for the net proceeds of the sale of the same, viz. "Leo," "Roy," "Supplement," and "Buckeye" claims.

in the "Irish Mag" claim theretofore owned by Mrs. McDowell which interest he purchased by paying a consideration therefor of $3,000, promised Patrick Cunningham that said Cunningham should be an equal owner in said claim with Martin Costello. (8) MarThe plaintiffs appeal from the judgment tin Costello did not purchase the "Irish and from the order refusing them a new Mag" group with his own funds, (9) nor for trial. Such appeal is an express attack on his sole and individual use and benefit. the order refusing a new trial, as the judg- (9A) Costello paid the $2,000 of the purchase ment denies to plaintiffs, as heirs of Patrick price after he sold the said group of claims. Cunningham, an accounting of the net pro- (16A) Martin Costello paid to Pete Johnson ceeds of the sale of the "Leo," "Roy," "Sup- $1,000 for the "Belflower" and "Smogplement," and "Buckeye" claims, and the ler" claims. (16B) Patrick Cunningham adplaintiffs' notice of appeal limits their ap-vanced to Martin Costello $500 of said sum peal to said matter and to that portion of the judgment which denies plaintiffs damages for the detention of the sums of money plaintiffs were awarded, from the dates upon which Costello received such money up to the date of filing the demand against the estate of Martin Costello, at the rate of 6 per cent. per annum, and to that portion of the judgment which denies plaintiffs' recovery of said portions of the proceeds of the sales of said four claims. The plaintiffs' notice of appeal expressly limits their appeal to such matters as may be corrected by means of a partial new trial, as prescribed by paragraph 597, Civil Code 1913.

prior to purchase of said claims. (17) Costello did not purchase said two claims with his own funds, (18) nor for his sole use and benefit. (19) Patrick Cunningham paid to Martin Costello $500 towards the purchase price of the "Belflower" and "Smogler" claims. (20) Cunningham delivered to Costello money which he intended to be used in the purchase of said two claims prior to the time when Costello acquired the title to said claims. (21) Costello was advised by Cunningham of the intention with which the money was delivered and of the purpose for which it was intended to be used. (22) Costello used the money so delivered to him for the

For convenience I will first consider the purpose intended, viz. in the payment of defendant's appeal.

Defendant's Appeal.

The facts found by the special verdicts of the jury applicable to the "Irish Mag" group of mines, composed of the "Irish Mag," "Old Republican," "George Washington," and "Angel" claims, hereafter, when referred to as a group of four claims, I shall so refer to such group as the "Irish Mag" group, and the "Belflower," "Smogler," and "Hattie Manchester" claims, may be briefly stated as follows (the figures indicate the number of the interrogatory in the body of which the fact is found):

the purchase price of the said "Belflower" and "Smogler" claims. (26A) At the time said two claims were conveyed to Martin Costello by Peter Johnson, Martin Costello promised Patrick Cunningham that the title thereto would be held by Martin Costello as trustee for Patrick Cunningham and himself as equal owners thereof. (27) Patrick Cunningham purchased an undivided onehalf interest in the "Hattie Manchester" claim, paying therefor in assessment work. (28) Said Cunningham acquired and paid for the other one-half interest in said claim prior to the 9th day of December, 1897, and on that date he conveyed the title to Martin Costello. (29) Before the execution of said deed Costello in writing requested Patrick Cunningham to so arrange the title to said claim to the end that they, Cunningham and Costello, would be in it as they were in together on all the rest. (30) By reason of such request, Cunningham thereupon conveyed the entire title to said claim to Costello. (31B) Costello paid to Patrick Cunningham the sum of $50 as consideration for said conveyance of the "Hattie Manchester" claim. (32) Martin Costello promised Patrick Cunningham that he would hold the legal title to said claim as trustee for himself and Patrick Cunningham as equal owners thereof.

(2) Patrick Cunningham, on or about the 11th day of November, 1890, in consideration of a power of attorney to James Reilly, paid to Mrs. Daley $1,000, (3) out of his own funds and for his use and benefit. (4) Said $1,000 so paid for said power of attorney was a part of the $3,000 purchase price paid to Mrs. Daley for her one-half interest in the "Irish Mag" claim and her entire interest in the "George Washington," "Old Republican," and "Angel" claims. (5) That James Reilly, as attorney in fact of Mrs. Daley, on or about the 16th day of September, 1892, did execute and deliver to Martin Costello a deed of Mrs. Daley's said interest in said claims named. (6) That said deed was executed and delivered upon Martin Costello's The following additional facts, referring promise to Mrs. Daley to pay the remaining to the maintenance of the title in the seven $2,000 of the purchase price. (7) Martin claims were also found by the special verCostello, at the time of or prior to the time dicts:

tee for said Cunningham and himself as equal owners thereof; and that Martin Costello promised Patrick Cunningham that he would hold the legal title to the "Hattie Manchester" claim as such trustee for the benefit of himself and Patrick Cunningham as equal owners thereof.

(34) Patrick Cunningham to the time of ell; that Costello paid the said $2,000 for his death performed half of the annual as- the Daley interests after the claims were sessment work on the "Irish Mag" group, sold by him; that Martin Costello promised except Costello at one time paid to Cunning- Patrick Cunningham that he would hold the ham $100 on account of such annual work. | legal title to the "Smogler" and "Belflower" (39) Costello promised to pay Cunningham claims purchased from Peter Johnson as trusat the rate of $5 per day for his services in connection with the annual work done on the "Irish Mag" group, and on the "Smogler," "Belflower," and "Hattie Manchester." (49) Martin Costello frequently promised Julia Cunningham, after the death of Patrick Cunningham, that when he sold the "Irish Mag" group and the "Smogler," "Belflower," and "Hattie Manchester" claims, that he would give the heirs of Patrick Cunningham half of the net proceeds of the said claims. Other facts touching the seven claims are found and will be noticed in connection with the matters to which they relate, viz. the matters of settlement and compromise, and damages for the detention of the proceeds of the sale of mines.

[1] The errors assigned by the defendant are numerous, and have reference to many incidents transpiring in the course of the trial. A large number of such assignments

have reference to matters connected with the

"Wagner" group of claims, the assigned claim of Julia Cunningham, and the account ing for the net proceeds of the "Leo," "Rov," "Supplement," and "Buckeye" mines. No portion of the money adjudged to be paid by defendant in accounting to plaintiffs is found to have arisen from either of said sources; consequently defendant has clearly suffered no injury by reason of errors committed with regard to such matters. I deem this statement entirely sufficient to dispose of all such questions as they are affected by the defendant's appeal.

[2, 3] Defendant's opening brief, page 74, concedes that the evidence presented by the plaintiffs "as to the 'Belflower' and 'Smogler' is substantially the same as upon the former trial and held sufficient by this court." The defendant therefore submits a request that we re-examine such evidence for the reason a new mass of evidence has been offered by the defendant. This is a request of this court to determine the weight of such evidence and revise the jury's verdict reached from conflicting evidence to conform to our idea of its weight. Such course has not been followed by this court, and will not be followed by me in this instance. The verdict of the binding upon the lower court and upon this jury, supported by substantial evidence, is court as establishing the fact found. The defendant's concession with respect to the evidence concerning the "Smogler" and "Belflower" relieves this court of the necessity of comparing the evidence relating to these two mines in this record with such evidence in the former record. The judgment, in so far as it requires the defendant to account for the net proceeds of the sale of the "Smogler" and "Belflower," must necessarily be determined as proper and sustained by substantial evidence. At the former trial the same determination was reached from the same evidence as was reached at the last trial. The net proceeds of the sale of these two claims are separate items of the second principal item of the alleged account.

The defendant assigns as error the insufficiency of the evidence to sustain the jury's findings referred to above as Nos. 2, 4, 5, 6, 7, 9A, 26A, 32, and 34; that is, the defendant contends that the evidence is insufficient to establish these facts: That Patrick Cun[4] Have the findings of the jury of the eqningham paid Mrs. Daley $1,000 in considera- | uitable rights of Patrick Cunningham in the tion of her granting to James Reilly her “Irish Mag" group and the "Hattie Manchespower of attorney; that said $1,000 was a ter" the support of substantial evidence, is part of the $3,000 purchase price paid to Mrs. the next important inquiry. The defendant Daley for her one-half interest in the "Irish bitterly attacks the testimony of Mrs. Julia Mag" claim, and her entire interest in the Cunningham as unworthy of belief for many "George Washington," "Old Republican," and reasons, the principal of which is that her "Angel" claims; that on the 16th day of testimony is contradicted by testimony of a September, 1892, Mrs. Daley, through her grade higher than oral testimony and thereattorney in fact, James Reilly, executed and fore controlling. But this is, in effect, saying delivered to Martin Costello a deed conveying that the testimony which contradicts the testo said Costello her said interests in said timony of said witness is entitled to the claims and that said deed was delivered upon greater weight. If so, the jury must deterMartin Costello's promise to pay the remain-mine the weight to be given all testimony subing $2,000 purchase price, as set forth in a mitted to them. certain letter; that Martin Costello promised [5] The testimony with regard to the acthat Patrick Cunningham and himself should quisition of the title to the "Irish Mag" group be equal owners in the "Irish Mag" claim is substantially the same in this record as at the time Costello purchased an undivided presented in the record on the former trial,

estate matters, should be given effect as evidence, as here contended for, property belonging to an estate first discovered after the estate is closed would be wholly lost to the rightful owners. The finding by the jury that we have been considering with regard to the "Irish Mag" group has the support of substantial evidence, and the finding justifies a decree requiring an accounting by the defendant estate for the proceeds of the sale of said group; that is, the first above mentioned principal separate item of account is sustained by the proof.

went. In addition to the evidence submitted, proceeding, the reports and documents in such by the former appeal, this record contains the circumstances transpiring at the time the Reilly power of attorney from Mrs. Daley was obtained. The evidence is clear that Costello and Cunningham discussed the circumstances surrounding the acquisition of said power of attorney in the presence of Mrs. Julia Cunningham. From this witness' testimony it appears that Patrick Cunningham left off his work, took $1,000 in money to Mrs. Daley at an early hour in the morning, and had her to accompany him (Cunningham) to a notary public, where she accepted the money, executed the Reilly power of attorney, and delivered the paper to Cunningham as a contract of sale of her interest in the "Irish Mag" group. Another witness testified to having seen $1,500 in Cunningham's possession as he (Cunningham) was on his way to see Mrs. Daley, and on Cunningham's return this witness saw a paper in Cunningham's possession in all respects similar to the Reilly power of attorney and Cunningham had only $500 in his possession. The transaction was a surprise to Costello. Thereafter, up to the date of Cunningham's funeral, Costello treated the "Irish

Mag" group as the property of him

self and Cunningham, and at the date of Cunningham's funeral he squarely admitted that Cunningham owned from the beginning an undivided half interest in said group.

Defendant urges with great seriousness that the many contradictions in the evidence presented by documentary items and by letters should have the effect of destroying all of the testimony of Mrs. Cunningham so contradicted. The record abounds in probate court documents filed, signed, and sworn to by Mrs. Cunningham while administratrix of the estate of Patrick Cunningham, deceased, and as guardian of the estate of these minors, which, being record evidence, is always deemed of very high grade evidence of facts pertinent thereto, and of which they relate; but the claims made, the property appraised, the property reported to the probate court by means of the said documents, all pertain to the property belonging to said estates without dispute. The mines accounted for in said two probate proceedings are the "Wagner" mines. The only manner in which the duty to account for the net proceeds of the sale of the other eleven mines is by a system of elimination by inference. That because said statements and reports do not mention mines or interest in mines other than the "Wagner" group, that this is evidence contradicting the claim of interest in any and in all mines other than in the mines mentioned. This is argument, but does not preclude the jury from lawfully believing the truth of the witness' story. Strictly, the documentary evidence mentioned does not conflict with Julia Cunningham's evidence relating to the additional claim now made in behalf of the heirs of Patrick Cunningham. If such probate

[6] With regard to the "Hattie Manchester" claim, the evidence is without conflict of a serious nature that Cunningham paid Allie Howe at least the value of one year's assessment work for his one half interest in said claim, and that he paid Tom Concannon $50 for the other half interest of said claim, and the entire title was conveyed to said Cunningham; that thereafter Costello suggested in a letter to Cunningham that they, meaning Costello and Cunningham, had just as well be in on that claim as they were on all of the others; that Cunningham conveyed the said "Hattie Manchester" to Costello, and in the deed of conveyance the consideration therefor is expressed as the sum of $50 paid by Costello.

This testimony, with the other facts and circumstances in evidence, substantially sustains the findings and judgment, and the finding justifies a decree requiring an accounting by the defendant estate for the net proceeds of the sale of the "Hattie Manchester" claim as a separate item of the second principal item of the alleged account, thus leaving the proceeds of the sale of the "Supplement" included in said second principal item open to future inquiry.

As a consequence, the judgment and portions thereof from which the defendant appeals is without error, and must be affirmed in so far as the same requires an accounting for the net proceeds of the sale of the "Irish Mag" group of four claims, the "Hattie Manchester," and of the "Belflower" and "Smogler" claims. The effect of this judgment on the matter of accounting was to require defendant to account for the first alleged principal item, and to account for the second in part. She is adjudged not liable to account for the proceeds of the sale of the separate item of the second principal item consisting of the proceeds of the sale of the "Supplement," nor for the third mentioned item of the alleged account.

Plaintiffs' Appeal.

The plaintiffs confined their motion for a new trial to the matters touching an accounting for the proceeds of the sales of the "Supplement," "Leo," "Roy," and "Buckeye" mines, the assigned claim of Julia Cunningham, and damages for detention. Their motion was denied. The effect of such proceed.

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