Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 13 Cal. 204 at 211.
Original Opinion of April 1859, Reported at: 13 Cal. 204.
JUDGES: On petition for a rehearing, the following opinion was delivered by Terry, C. J. Baldwin, J. concurring.
OPINION
TERRY, Judge
On petition for a rehearing, the following opinion was delivered by Terry, C. J.--Baldwin, J. concurring.
Plaintiff asks for rehearing in this cause, on the ground that the Court had mistaken material facts contained in the record. Before the opinion was rendered, a very careful investigation of the whole record was had. The case was a novel one, involving the professional integrity of respectable Attorneys, and the decision depended mainly on the facts of the record. The charge of the Court below having, as counsel for Appellant contended, " entitled the Appellant to the benefit of every fact in evidence on the trial."
Upon the suggestion of the plaintiff, we have again instituted an examination of the statement, and are unable to discover the mistake of fact into which it is claimed the Court became involved.
We think the conclusion stated in the former opinion, that the departure from the plans originally adopted by the owners of the building were assented to by Hastings' agents, who had authority to bind him in the premises, is entirely supported by the record. The power of attorney authorized Haven and Briceland to represent plaintiff's interest in the property, and to cast his vote in relation thereto in all matters relating to the administration or improvement of the property, and to do and perform every act or thing relating to and concerning such interest, except the sale or hypothecation thereof. There can be no question as to their power to consent to alterations; as to the fact of such consent having been given, Haven says: " I remember saying to Woods, when he showed me his diagrams, that I thought the alterations were wise ones. There was nothing said about the increase of cost. Briceland and myself had frequently spoken of the defects in the original plans."
Again, in answer to a question as to his testimony on the trial of a former cause, he said: " Briceland always consulted me about his vote with the other owners, and he cast the vote as we had agreed." Briceland says: " When Mr. Woods proposed to substitute bricks, I objected to it. There was no consultation on the subject. It was simply mentioned in the office. There was a strong force employed, as strong as could be, in filling in, and the winter was coming on. Masons know why it is easier to build in winter with brick than stone. I at last came to the conclusion that it would not be much more expensive, if any, to build with brick than stone. When the winter approached, I thought it would be for the interest of the owners to build with brick, as the building could be sooner completed and rendered productive."
Plaintiff says: " That on the eve of Hastings' departure, the four co-owners, including Woods and Haskell, entered into a mutual agreement that the works should be completed according to the original plans, and that the warehouse and wharf being sufficient to bring in a considerable revenue, there should be thenceforth no new outlay, but the expenses of completion should be paid out of the receipts from storage and wharfage.
" And, further, that it was on the faith of this agreement that the power of attorney was given to Haven and Briceland."
This is the counsel's conclusion from the testimony of Mr. Flint, who stated that " it was so understood among the owners."
It does not appear that at this time there was anything stored in the building, or that any revenue whatever was collected from the wharf, and if such an anticipation was indulged in by the parties, it must necessarily have resulted in disappointment. No revenue was being derived from the property, and we think it sufficiently appears from the evidence that in the then state of the building there was no probability of realizing any considerable sum from it. Its condition at the time is thus stated by the Superintendent: " There was in the rear part of the building a portion of the floor laid--about one-quarter, or thirty or forty feet--the only chance of having storage was either outside the building, or under cover of the floor, that is the floor of the second story. You could not get to the warehouse with any kind of a vehicle at that time." He further says: " I never understood that the improvements were to be completed out of the profits. If I had, I would not have drawn on Adams & Co and would have discharged all the men."
There was certainly no reasonable ground for indulging the belief that the current revenue of the property would defray the costs of the improvements, and that plaintiff himself had doubts on the subject is shown by his conversation with Haven, in which he expressed the belief " that moneys would be forthcoming if his own failed, that is, if his part could not be paid, it would be advanced by other partners," and the fact that he undertook to make an arrangement with Adams & Co. to advance the necessary funds, at one and a half per cent., and his giving to Haven, on the eve of his departure, a paper to this effect, which Adams & Co. refused to sign.
It is also objected that allusion is made to the fact that the plaintiff clandestinely left the State to avoid service of process, in the suit of Adams v. Hastings, which fact, the counsel conceives, has no bearing upon the merits of the case, and which he insists is not true.
It was certainly not the design of any member of the Court to go out of the record, to imply a charge affecting the standing of any litigant.
The fact was thought to bear upon the merits of the case, for the reason that one of the charges in the complaint upon which damages are assigned is that defendants, instead of using proper means to procure a speedy trial of the cause, permitted it to remain pending in the Court below for about a year, the interest meantime accumulating at the rate of over seven hundred dollars per month. Defendants urged in reply to this charge that the delay was desired by the plaintiff so earnestly that he took extraordinary means to procure it. The counsel is much mistaken in supposing that evidence of this fact is confined to the sworn answer of defendants. It appears in the testimony of two witnesses called by plaintiff, and is nowhere contradicted.
Dr. Maxwell, a witness sworn on behalf of plaintiff, testified:
" When Dr. Hastings left, in 1854, I went part of the way with him to the steamer. * * * I met him somewhere on Washington Street. At his request, stopped short and did not accompany him. He requested me not to go on board, as he did not want it to be known that he was going home. He told me the day before that he was going to remain two weeks longer, and I afterwards learned that at that time he had his ticket in his pocket. He did not tell me the business on which he went home. * * * He intimated to me that it was some private matters that he wished to avoid."
B. F. Voorhies, a witness for plaintiff, " was Cashier of Nicaragua Ship Co. A few days before the sailing of the steamer a gentleman applied to take passage privately. He first applied to Mr. Ralston. I was called to be present at the meeting, and was not informed of his name till he was about leaving. I gave him the cue--a wrong name was put down on the berth-list, which is open to public inspection; but I presume Dr. Hastings' own name was on the ticket, for the tickets were only taken up after getting to sea. * * * John Smith, or some bogus name, was put down on the berth-list. It is a common thing to do. I know that it was Dr. Hastings' from a private mark I placed under the bogus name on the berth-list, to guide me in making out the tickets."
Application denied.