Summary
In Van Etten v. Gilson, 6 Cal. 19, the plaintiff sought, in a Justice's Court, to recover the possession of a mining claim, and in conjunction therewith, prayed for damages for injuries done thereto by defendant.
Summary of this case from Wratten v. WilsonOpinion
Appeal from the County Court of Nevada County.
The plaintiffs brought their action in a Justice's Court to recover possession of a mining claim, and for damages for injuries done thereto by defendants. The defendants answered, and on trial moved to dismiss the action, for the reason that two causes of action were improperly united. The Justice overruled the motion. The jury found a verdict for defendants, and judgment was entered accordingly, from which plaintiffs appealed to the County Court. There the motion to dismiss was renewed and granted, and the action dismissed. Plaintiffs appealed.
COUNSEL
McFarland & Caldwell, for Appellants.
Buckner & Hill, for Respondents.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
The third instruction given by the District Court, at the request of the plaintiff, is clearly erroneous. The true rule of damages is the value of the labor performed, and the amount of profit which could fairly have been derived from the labor left unperformed by the act of the defendants. Although afterwards, at the defendants' request, the Court laid down the correct rule, yet it is impossible to say that the erroneous instruction first given had no influence upon the jury. Both stood together and were of equal force, and we cannot by computation ascertain by which one the jury was controlled.
Judgment reversed, and cause remanded.