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BANCROFT
LIBRARY

•o

THE LIBRARY

THE UNIVERSITY
OF CALIFORNIA

San Francisco. No.

IN THR

Court

OF THE

STATE OF CALIFORNIA

N. J. STONE,

Plaint 'iff and Respondent

vs.

H. H. BANCROFT,

Defendant and Appellant

TRANSCRIPT ON APPEAL

E. J. McCUTCHEN,

Attorney for Appellant

Filed this day of May, 1895

T. H. WARD, Clerk
By Deputy Clerk

"lamtiff and Respondent, v. H. H. BANCROFT
fendant and Appellant.

?Cai frnm thC Snperior Court of Contra Costa County— John H

CT &

For Respondent— Reddy, Campbell & Mets^n.

This action is brought to recover upon a written contract for se^
| salary, at the rate of $350 per month, commencing Septem j
The plaintiff obtained a verdict and judgment for the f '
claimed, and the defendant appeals from the judgment a
bis motion for a new trial. This court in departme
^ such judgment and order (24 Cal. Dee 696) a i

eZl *'M *"***' ^ ^^ ^°n which this ac*™ is co
enced is the same one involved in a former action brought bv tk
plaintiff against this defendant for salary for a former period of sV
i vice, in which plaintiff recovered judgLnt, which iuTmenf w-
, affirmed by this court. (Stone v. Bancroft, 112 Cal. 652.) We as
.convinced, upon a more thorough examination of the record that i
jthis > court^dhemuo the views expressed in its decision in [he forme

affirmed. The only difference
former case there were some
contract during a small por-
rtiile there was no work at all
in this action. That differ-
rule doAvn in the former case
fat portion of this time plain-
ps ready and willing to work
1 no work was offered, and he
ict^was in full force, and his
Upon this branch of the
»ressed in the commissioner's
inry were warranted in their i
mtial breach of the contract'
an requested by appellant, to,
r engaged in, directly or in- 1
g business, the verdict must!

••— ^ 1S als° ^erv clear that

! Civil Code, noted in the Smm^^^^^ section 1980 6f the

maintained on the contract bv «„ ^^^P^L actlon cai 'be)

after the expiration of two

commenced. It was not

asva defense, but we are

case at bar. The statute te^tTn

may not recover on the contract for

expiration of two yeans. The lanS

cannot be enforced against -t!>e emvl
was manifestly for his protection n

eaves him at liberty to proceed Tndir
last sentence of the section
tion, that for all services rej
the employee must brino- his
serted in the statute for^the prote(
employee, disregarding the contract
able value of his sr '

employer may avail „
sation, as presumably

* *

the

t0 plead this «tatute
ls- not aPPH<*ble to the
that the

afte
GXplieit that ^

tW° years' and ^
Was enacted. It

-^ S° eleets'
•reh?8 in his
eXpl/atl°n of two
Ma*<?"» ^^, was in-
^.employer, so that if the

hlS action for «ie reason

? ^ ^ht to "«
C°Dtraet as to

, ,°'"eaWe against

deceased. The r^ST estate ^
ministration, and the payment c
in equal proportions. This, thei .
a voluntary defective conveyance t\
to correct and reform the conveyariv
is unprovided for by deceased. If thr
chaser for a valuable consideration, if \
against the heirs and reformed so. as to j^
tended to be conveyed. But the legal title !•

a decree
is now <j

(jU c«ttKuiV £>f«uly, o. j.,' j-.^i6an, J.
Cornprring opinion by Angellotti, J. 1

i
Mh

deceased

diss nt: MfFarland, L^ _

rts (

S F 23lk^R£ese /^/1Q $y the

cases wh

Court R2EEW*>*i-S-S r-

)iTectrv

executioi

S F 2398— Stone v Bancroft. Ine

arty seV

must sta
whom he
the cour

judgment heretofore entered herein is
vacated, and cause ordered submitted
to the Court in bane, pursuant to
Subd. 2 of Rule XXVIII. Beatty, C.

aat of thV
he law musV
he equities oK

are, at 1$
and nati

J. Angellotti J., Shaw J.
S F 2873-2874— Estate of ( Wicker-

b is the dictate\x
wife dying withe.

should go in part to her surviving husband. This was certam\
view of the legislature in enacting our statute of distributions^
in such case it makes the husband the owner of one-half the pro
erty. If this be so, then equity would say to appellant that she should
allow the respondent his one-half the property. A court of equity in
terferes to correct a mistake in a written instrument only in further
ance of justice, and to prevent fraud or some injustice. In this case,
by refusing to correct the deed, no fraud nor injustice is done to ap
pellant. She has lost nothing, because she paid no consideration for
the deed. She has been deprived of nothing the law would otherwise
give her. It is true the intention of the grantor is not carried out, but
it would have been equally true if an attempt had been made to make
a will and it had been defective in a vital part. The court could
not reform a will nor make it so that it would comply with the law.
In this case the deceased intended to convey the property, but she did
not do so. That intention will not now be carried cut in favor of one
who paid nothing for the conveyance, and against a lawful heir.

The above principles are supported by an unbroken line of author
ities. It was long ago said in Dawson v. Dawson, 1 Dev. Eq. 101 : "The
old beaten ground, long since occupied by the courts of equity, not to
aid voluntary conveyances, seems to render any reasons that might be
urged, to show that the bill should be dismissed, both trite and un
necessary. ' '

It is said in Story on Equity Jurisprudence, Vol. 1, Sec. 177: "For
the same reason equity will not supply a surrender or aid the defective
execution of a power to the disinheritance of the heir at law. ' '

The following cases directly support what has been said : Henderson
et al. v. Dickey et al., 35 Missouri 120 ; Hout v. Hout et al., 20 Ohio
119 ; Powell et al. v. Powell, 27 Geo. 38 ; Powell v. Morisey, 98 N. Car
olina 426; Shears v. Westover, 110 Mich. 505; Else v. Kennedy, 57

ulock, 31 N.

pHef, do not attempt to meet

. rely upon Section 3399 of the

/hat the construction or decision

abject, because our Code has clearly

, rule is changed by the legislature it

and fully and completely governs and

bar."

.-' ^vides that in ease where by reason of a mu-

jontract does not truly express the intention

Sfrbe revised on the application of the party ag-

*t the word "may" means must, it does not follow
V;Vt must be revised, except upon the application of the
.-?>i' and in accordance with the rules of equity. The
<id in the sense of the statute means one whose pecuniary
Affected by the mistake. It would include one who paid
.rand, which, by mistake, was omitted from the deed. It does
Ade appellant, who is not aggrieved, except in the sense that
•^AY grieve that she did not get the property. In that sense the
js^ondent might be said to be aggrieved because the property was not
^ydveyed to him. But the section was never intended to overthrow
vvell settled principles upon which equity has been administered under
the common law. The section certainly does not contain all the law
with respect to the correction of mistakes in courts of equity. It is
only where it clearly appears that a long established principle is in
tended to be overthrown that the court will give such effect to a statute.
•Mills, Estate of, v. Mills et al., filed September 15, 1902, 24 Cal. Dec.
293.

It follows that the judgment should be affirmed.

COOPER, C.
"We concur:

HAYNES, C.
GRAY, C.

For the reasons given in the foregoing opinion the judgment is
affirmed.

VAN DYKE, J.
HARRISON, J.
GAROUTTE, J.

S. F. No. 2398— Department One. December 18, 1902.

N. J. STONE, Plaintiff and Respondent, v. H. H. BANCROFT, De
fendant and Appellant.

CONTRACTS— PERSONAL SERVICES— PREVENTION OF COMPLETION BY EMPLOYER—
EEMEDY— SECTION 1980, C. C."— Where a contract for personal services for
a definite term of years at a monthly salary is made, and there is nothing to show
that the employer discharged the employee, although the latter was prevented from
doing the work contracted for during the period in question, by the employer, the
remedy of the employee is to sue for the compensation agreed upon, not for dam-

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,(-anuoAt: -

3in

uod

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1m-
fchat

CALIFORNIA DECISIONS. 697

ages for breach of contract. The fact that the employee for a portion of the
time he was prevented from working under the contract engaged in other work
is not a breach of the contract on his part. Where such a contract provides for
employment for ten years at a certain amount per month, the monthly salary is due
at the end of each month, and payment is not postponed to the end of the ten
year period. Section 1980 of the Civil Code is no defense to an action on such a
contract.

Appeal from the Superior Court of Contra Costa County — John Hunt,
Judge. !t

For Appellant — Edward J. McCutchen; Page, McCutchen & Eells,
Page, McCutchen, Harding & Knight of Counsel.

For Respondent — Reddy, Campbell & Metson.

This action was brought to recover a salary of $350 per month for
seven months from September 1, 1893, to April 1, 1894, amounting in
the aggregate to $2450. The plaintiff obtained a verdict and judgment
for the full amount claimed. The defendant appeals from the judgment
and from an order denying him a new trial.

The action is based on a written agreement made between the parties-
to the suit on August 20, 1886, in which plaintiff, Stone, agreed to de
vote ten years, beginning with that date, to the publication
and sale of the historical works of defendant Bancroft at a monthly
salary of $350, and defendant agreed to employ him on those terms.
Suit was maintained for a former period of service under this same con
tract and the judgment in plaintiff's favor affirmed in Stone v. Ban
croft, 112 Cal. 652. Reference is here had to that case for a fuller state
ment of the contract here in suit. It is settled by that case that the
contract is one for personal services and not a partnership agreement.

1. It is contended by appellant that in this suit the plaintiff has mis
taken his remedy, that the defendant discharged plaintiff from his ser
vice and that, consequently, if plaintiff has any cause of action at all, it
is one for breach of the contract and not one for services under the con
tract. But appellant fails to call our attention to any declaration or
other act of defendant which amounted to an unequivocal discharge of
the plaintiff from further employment. To be sure it appears that
plaintiff was prevented from working at all during the period covered
by the present suit, by the defendant, but it is one thing to prevent a
party from laboring and quite a different thing to discharge him from
all further employment.

In the former instance the contract need not be treated as broken,
but the party, though he has performed no labor under it, may sue on
the contract and recover the agreed compensation. In the latter in
stance there is an unequivocal breach of the contract to employ for a
specified time by the employer, and the suit should be as for a breach
of the agreement to employ. All of which is clearly laid down and il
lustrated in Stone v. Bancroft, supra. The same principle is stated in
Dingley v. Oler, 117 U. S. 490. The plaintiff testified that he was not
discharged and stated what was said and done to prevent him from
working, and on his evidence the jury based their verdict in his favor,
and thus it was impliedly found that he was not discharged, and we
think the evidence warranted the finding. If the defendant desired ta
discharge the plaintiff he should have told him that he was discharged.

698

CALIFORNIA DECISIONS.

Instead of doing this he seems to have adopted a course by which if he
was sued for a breach of the contract he might plausibly say, ' ' You have
mistaken your remedy. I did not discharge you"; and if on the other
hand the suit should be on the contract he might say, "You should have
sued as for a breach of the contract for I discharged you and thus
broke my agreement." Where it is admitted that the plaintiff is en
titled to recover in some form of action this court will not be overnice in
its distinctions as to what form should be pursued. On the circum
stances presented we decline to interfere with the judgment on any
theory of mistake as to remedy. The law touching this point is clearly
laid down in the former case of Stone v. Bancroft, supra, and need not
be again repeated. The evidence showing that there was no discharge
is fully as strong here as it was in that case and there it was conceded
by appellant that there was no discharge, but it was contended that
Stone had withdrawn from the contract and abandoned the employment.
2. The evidence tended to show that plaintiff, during a small portion
of the period covered by the suit, assisted another in the publication
and sale of a medical book entitled ' ' Femina, ' ' and it is contended that
this was a violation of plaintiff's contract "to devote his whole time"
to the historical works of Bancroft, It appears that Stone was at all
times ready and willing to fully perform his contract with Bancroft but
was prevented from so doing. He was left then either to remain idle or
work at something else. This work did not "interfere with his efforts
on behalf of the said History Company. ' ' Bancroft was in no way in
jured by Stone working at something else when he was not permitted
to work under the contract, and cannot be heard to complain thereat.
What plaintiff did in connection with the "Femina" publication did
not, therefore, constitute a substantial breach of his contract with appel
lant, and the jury were warranted in their conclusion to that effect.
Herman v. Little-field, 109 Cal. 430. ) This same question, on practically
the same evidence, was passed on adversely to appellant's contention in
the former case of Stone v. Bancroft, supra.

3. Appellant's next contention is that by the terms of the contract
plaintiff could recover nothing until the expiration of the ten years ' ser
vice contemplated by said contract. There is no merit in this conten
tion. This was a contract of hiring for the period of ten years with com
pensation fixed at $350 per month and that amount was due and owing
at the conclusion of each month's service. There is nothing in the con
tract to indicate an intention as to the times of payment, otherwise than
as above stated.

4. Appellant's last contention is based on section 1980 of the Civil
Code, which provides as follows: "A contract to render personal ser
vice, other than a contract of apprenticeship, as provided in the chapter
on Master and Servant, cannot be enforced as against the employee be
yond the term of two years from the commencement of service under it •
but if the employee voluntarily continues his service under it beyond
that time, the contract may be referred to as affording a presumptive
measure of the compensation."

There is nothing in this contention because (1) the statute was not

that

CALIFORNIA DECISIONS. 699

pleaded; (2) it would not have been a bar or defense to this action
if it had been pleaded.

The judgment and order should be affirmed.

GRAY, C.
(We concur:

HAYNES, C.
COOPER, C.

For the reasons given in the foregoing opinion the judgment and or-
der are affirmed.

GAROUTTE, J.
HARRISON, J.
VAN DYKE, J.

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INDEX

Page. Folio.

Answer 11 25

Assignment of Errors 238 707

Certificate to Judgment Roll 16 42

Complaint 1 1

Certificate of Judge to Statement 258 767

Defendant's Request to Charge the Jury 231 686

Demurrer to Complaint 8 17

Instructions to the Jury 215 638

Judgment on Verdict 15 38

Notice of Appeal 259 770

Notice of Intention to Move for New Trial 17 44

Order Denying Motion for New Trial 258 768

Order Overruling Demurrer to Complaint 10 24

Special Issue Requested by Defendant to be Submitted to

the Jury 214 636

Specification of Particulars in which Verdict is Against Law 241 717

Specification of Errors in Law Occurring at the Trial 242 718

Statement on Motion for New Trial 18 47

Stipulation 260 773

Testimony —

Bancroft, H. H., direct 163 482

" " cross 177 523

re-direct 201 597

Boyns, W. C., rebuttal 205 608

" " cross 206 611

Crawford, Daniel, direct 87 254

" " cross 88 256

Edwards, George, direct 147 435

cross 148 438

Elliott, 0. H., direct 139 410

" " cross 142 419

Hambly, H. B., direct 85 249

Hambly, Nyna, direct 92 269

" " cross 93 273

Hartwell, W. H., direct 103 301

cross... . 106 312

INDEX.

Page. Folio.

Hayes, Eleanor, direct 97 284

" " cross 99 291

Miller, Dr. J., direct 126 371

" " cross 132 388

" " re-direot 139 409

Monk, H. M., direct 142 420

" " cross 144 425

Moore, S. B., rebuttal 206 612

" " cross 207 615

Morrison, George H, direct 150 444

" " cross 154 456

re-direct 161 477

" " re-cross 162 479

" " recalled 202 599

Sessions, D. R., direct 83 242

" " cross 85 247

Staib, F. C., direct 100 294

" cross 102 398

Stone, N. J., direct 18 48

" " cross 43 123

" " re-direct 71 205

" " re-cross 81 237

recalled 123 363

" " rebuttal 209 621

" " cross 213 632

Trigo, Jose M., direct 109 319

cross 120 354

" " re-direct.. . 123 361

IN THE

STATE OF CALIFORNIA

Transcript on Appeal.

In the Superior Court of the City and County
of San Francisco, State of California.

2 N. J. STONE,

Plaintiff.

vs.

H. H. BANCROFT,

Defendant.

COMPLAINT.

N. J. Stone, the plaintiff herein, complains of
H. H. Bancroft, the defendant herein, and for
cause of action alleges:

INDEX.

Page. Folio.

Hayes, Eleanor, direct 97 284

" " cross 99 291

Miller, Dr. J., direct 126 371

" " cross 132 388

" " re-direct 139 409

Monk, H. M., direct 142 420

" " cross 144 425

Moore, S. B., rebuttal 206 612

" " cross 207 615

Morrison, George H, direct 150 444

cross 154 456

" " re-direct 161 477

re-cross 162 479

recalled 202 599

Sessions, D. R., direct 83 242

" " cross 85 247

Staib, F. C., direct 100 294

" cross 102 398

Stone, N. J., direct 18 48

' ' cross 43 1 23

" " re-direct 71 205

" " re-cross 81 237

" " recalled 123 363

" " rebuttal 209 621

cross 213 632

Trigo, Jose M., direct 109 319

" cross 120 354

" " re-direct.. . 123 361

IN THE

SUPREME COURT

OF THE

STATE OF CALIFORNIA

Transcript on Appeal.

In the Superior Court of the City and County
of San Francisco, State of California.

2 N. J. STONE,

Plaintiff.

vs.

H. H. BANCROFT,

Defendant.

COMPLAINT.

N. J. Stone, the plaintiff herein, complains of
H. H. Bancroft, the defendant herein, and for
cause of action alleges:

4 I.

That heretofore, to wit : on the 20th day of
August, A. D., 1886, plaintiff and defendant made
and entered into the following agreement :

" This agreement, made in San Francisco, Cali-

ry / /

fornia, by H. H. Bancroft and N. J. Stone, wit-
nesseth: That in consideration of the valuable
services done by the said Stone, in conducting
the publication and sale of the historical works of

f- the said Bancroft, the business formerly being
conducted as the Bancroft's Works Department
of A. L. Bancroft & Co., but now being done and
shortly to be incorporated under the laws of Cali
fornia, as the History Company, the said Ban
croft hereby sells and assigns to the said Stone a
one-tenth interest in the said History Company,
plates, paper, stock, money, outstanding accounts,
or other property of said company, upon the fol
lowing conditions :

6 " The said N. J. Stone is to devote his whole
time and best energies, so far as his health and
strength shall permit, for a period of not less than
ten years from the date o f this agreement, to the
publication and sale of the historical works of
H. H. Bancroft, and of such other works, and
conduct such other business as may be from time
to time taken up and entered into by said History
Company ; and the said Stone agrees not to enter

into or engage in, directly or indirectly, any other
mercantile or manufacturing business, or to any
other business or occupation which shall in any
wise absorb his mind and strength, or interfere
with his interest or efforts on behalf of the said
History Company during the said term of ten
years.

'' Upon the incorporation of the History Com
pany one-tenth of the whole number of shares
shall be issued and delivered to the said N. J.

Stone; but should the said Stone fail in any wise
to carry out this agreement, or any part thereof,
in its full letter and spirit, then the said one-tenth
interest in the said History Company shall be
forfeited and revert to the said H. H. Bancroft ;
provided, and it is distinctly understood and
agreed, that in case of the death of the said N. J.
Stone before the expiration of five years from the
date of this agreement, the said Stone having
9 fulfilled all the conditions of this agreement up to
that time, then one-half of the said one-tenth in
terest of the said Stone in the History Company
shall go to his heirs, and be their property uncon-
ditionallv ; and in the event of the death of the
said Stone at any time after the expiration of five
years from the date of this agreement, the terms
hereof having been fully complied with, then the
whole of the said one-tenth interest shall belong
to his heirs unconditionally.

io "The salary of the said Stone shall be $350 a
month. The copyright of the said historical
works belongs exclusively to the said Bancroft,
and shall be fifty cents a volume for the History
and Diaz, and twenty cents on the little history
of Mexico.

" Signed in San Francisco, the twentieth day
of August, 1886.

-Witness: H. H. BANCROFT.

" W. H. HURTWELL. N. J. STONE."

II.

The plaintiff has honestly and faithfully per
formed all of the terms and conditions of said
contract, on his part'to be kept and performed.

III.

That the defendant has failed and neglected to
perform the terms and conditions upon his part to
be performed, and has failed, neglected and re
fused to pay or cause to be paid to plaintiff, the
salary mentioned in said contract at the rate of
three hundred and fifty dollars per month, since
the first day of July, A. D., 1892, and still fails
and refuses so to do.

13 IV.

That there remains unpaid to plaintiff, under
the terms of said contract, the sum of four thou
sand nine hundred dollars, for fourteen months at
the rate of three hundred and fifty dollars per
month.

Wherefore, plaintiff demands judgment for the
sum of four thousand nine hundred ($4,900) dol
lars and for costs of suit.

14 KEDDY, CAMPBELL & METSON,

Attorneys for Plaintiff.

STATE OP CALIFORNIA,
City and County of San Francisco

> ss.

15 N. J. Stone, being duly sworn, deposes and
says: That he is plaintiff in the above-entitled
action; that he has read the above and forego
ing complaint, and knows the contents thereof;
that the same is true of his own knowledge, ex
cept as to the matters which are therein stated on
his information or belief, and as to those matters
that he believes it to be true.

N. J. STONE.

1 6 Subscribed and sworn to before me this 12th
day of September, 1893.

[SEAL] CHAS. T. STANLEY,

Notary Public.

[Endorsed:] Filed September 12, 1893.

M. C. HALEY, Clerk.
By WM. H. LYMAN, Deputy Clerk.

Filed Nov. 4, 1893.

17 A. A. BAILEY, Clerk,

DEMURRER TO COMPLAINT.

[Title of Court and Cause.]

Now comes the defendant, and demurs to the
plaintiff's complaint on file herein, upon the fol
lowing grounds to wit:

First — That said complaint does not state facts
1 8 sufficient to constitute a cause of action.

Second — That said complaint is ambiguous in
this:

(a) That it does not appear therefrom whether
the corporation referred to in the agreement set
forth in said complaint was ever formed or or
ganized.

(6) That it does not appear therefrom what
services, if any, were performed by the plaintiff.

J9 ^(c) That it does not appear whether the ser
vices, if any, performed by the plaintiff, were per
formed for the defendant, or for said corporation,
the History Company.

Third — That said complaint is uncertain in this :
(a) That it does not appear therefrom whether
the corporation referred to in the agreement set
forth in said complaint was ever formed or organ
ized.

20 (b) That it does not appear therefrom what
services, if any, were performed by the plaintiff

(c) That it does not appear whether the ser
vices, if any, performed by the plaintiff, were per
formed for the defendant, or for said corporation,
the History Company.

Fourth— That said complaint is unintelligible in
this :

(a) That it does not appear therefrom whether

21 the corporation referred to in the agreement set
forth in said complaint was ever formed or or
ganized.

(6) That it does not appear therefrom what
services, if any, were performed by the plaintiff.

(c) That it does not appear whether the ser
vices, if any, performed, by the plaintiff, were
performed for the defendant, or for said corpora
tion, the History Company.

22 Wherefore, this defendant prays to go hence
dismissed with his costs.

E. J. MoCUTCHEN,

Attorney for Defendant.

[Endorsed :] Service of a copy of the within de
murrer to complaint is hereby admitted this 10th
day of Oct., 1893.

REDDY, CAMPBELL & METSON,

23 Attorneys for Plaintiff.

Filed October 10, 1893.

M. C. HALEY, Clerk.
By J. W. SULLIVAN, Deputy Clerk.
Filed Nov. 4, 1893.

A. A. BAILEY, Clerk.

ORDER OVERRULING DEMURRER.

[Title of Coutr and Cause.]

Monday, December 18th, A. D., 1894. Pres
ent, Hon. Joseph P. Jones, Judge.

The briefs heretofore ordered having been fur
nished, it is ordered that the demurrer be sub
mitted; to the Court for decision; and the Court
having sufficiently considered the same, it is
ordered that the said demurrer be and the same is

25 hereby overruled with ten days, allowed to defen
dant in which to answer.

ANSWER.

[Title of Court and Cause.]

The above-named defendant, answering unto
plaintiff's complaint on file herein :
x- Denies, that plaintiff has honestly and faith
fully, or honestly or faithfully, or otherwise, per
formed all or any of the terms and conditions of
said contract set forth in plaintiff's complaint, on
his, plaintiff's, part to be performed.

Denies, that he, defendant, has failed and neg
lected, or failed or neglected, to perform the
terms and conditions of the contract mentioned in
plaintiff's complaint, upon his, defendant's, part to
be performed ; but avers, that he has duly per-
27 formed all the conditions on his part to be per
formed in and by the terms and stipulations of
said contract.

Defendant admits that he has not paid or
caused to be paid to plaintiff the salary mentioned
in said contract at the rate of $350 per month
since the 1st day of July, 1892 ; but avers, that
he is under no obligation to pay said salary or
any part thereof, and that plaintiff has not, at any

2S time since the date of said agreement set forth in
plaintiff's complaint, been in the service or em
ployment of defendant, under the terms of said
agreement, or otherwise, or at all.

Denies, that there remains due or unpaid to
plaintiff, under the terms and conditions or the
terms or conditions of said contract mentioned in
plaintiff's complaint, the further sum of $4,900,
or any sum, for fourteen or any number of months,
at the rate of $350, or any sum, per month, or

that there remains due or unpaid to plaintiff any
sum whatever.

And as a further and separate answer to plain
tiff's complaint on file herein,

Defendant avers that on the twenty-third day
of September, 1886, the History Company, men
tioned in the agreement set forth in plaintiff's
complaint, was duly incorporated under and by
virtue of the laws of the State of California under
30 the name of the History Company, and that ever
since said date the said History Company has
been and still is a corporation duly organized and
existing under and by virtue of the laws of the
State of California, and having its principal place
of business in the City and County of San Fran
cisco, State of California.

That immediately upon the incorporation of
said History Company defendant transferred to it,

31 the said corporation, the properties mentioned in
said agreement set forth in plaintiff's complaint,
and thereupon, both plaintiff and defendant be
came, ever since have been, and now are, stock
holders of and in said corporation, and after said
formation the said corporation carried on and
conducted the business mentioned in said agree
ment, and defendant has had nothing to do with
said business since that time, except as an officer
of said corporation. That from the date of the

T,2

incorporation of said History Company until on
or about the said 1st day of July, 1892, plaintiff
acted in the capacity of General Manager thereof,
but plaintiff has not at any time since the forma
tion of said corporation, or at any other time
since the date of said agreement, performed for or
rendered to defendant any service whatever.

And further answering, defendant avers, upon
his information and belief, that ever since on or
-i- about the 1st day of July, 1892, said plaintiff has
been engaged in carrying on and conducting, for
himself and other persons, and in opposition to
said History Company, a business of the same
kind and character as that carried on and con
ducted by said History Company.

Wherefore, defendant having fully answered
prays to be hence dismissed with his costs.

E. J. McCUTCHEN,
Attorney for Defendant.

34 STATE OF CALIFORNIA, )

County of San Diego. ) SS*

H. H. Bancroft, being duly sworn, deposes and
says : That he is the defendant in the above en
titled action; that he has read the above and
foregoing answer, and knows the contents
thereof; that the same is true of his own knowl
edge, except as to the matters which are therein
stated on his information or belief, and as to

35 those matters that he believes it to be true.

H. H. BANCROFT.

Subscribed and sworn to before me this 9th
day of January, A. D., 1894.

[SEAL.] W. D. WOODWINE,

Notary Public.

[Endorsed :] Service of a copy of the within
answer is hereby admitted this llth day of Jan
uary, 1894.

REDDY, CAMPBELL & METSON,

Attorneys for Plaintiff.

Filed January 12th, 1894.

A. A. BAILEY, Clerk.
By W. DK MARTINI, Deputy Clerk.

37 VERDICT.

(Title of Court and Cause.)

We, the jury, find for the plaintiff in the sum
of $4,900, with interest at (7) seven per cent per
annum. JOHN W. BOYD, Foreman.

March 23rd, 1894.

[Endorsed:] Filed March 23, 1894.

A. A. BAILEY, Clerk.

JUDGMENT ON VERDICT.

[Title of Court and Cause.]

April 23d, 1894.

Present, Hon. Jos. P. Jones, Judge.

This action came on regularly for trial. The
parties appeared by their respective attorneys,
Patrick Reddy and J. P. Abbott, Esqs., for
plaintiff, and E. J. McCutchen and W. S. Wells,

Esqs., for defendant. A jury of twelve persons
o >^

was regularly impaneled and sworn to try the

cause. Witnesses on the part of plaintiff and de
fendant were sworn and examined. After hear
ing the evidence, the arguments of counsel, and
the instructions of the Court, the jury retired to
deliberate upon a verdict, and subsequently re
turned into Court, were called and all answered
to their names and presented the following ver
dict, to wit:

40 We, the jury, find for the plaintiff in the sum
of $4,900, with interest at (7) seven per cent per
annum. JOHN W. BOYD, Foreman.

March, 23d, 1894.

Wherefore, by virtue of the law, and by reason
of the premises aforesaid, it is ordered, adjudged
and decreed that said N. J. Stone, plaintiff,
do have and recover from the said H. H. Ban
croft, defendant, the sum of forty nine hundred
dollars, with interest thereon with interest thereon

41 amounting to the sum of three hundred and sev
enty-eight dollars, together with costs and dis
bursements incurred in this action, amounting:

' ^2

to the sum of two hundred and seven dollars.

Judgment entered this 24th day of March,
A. D., 1894.

A. A. BAILEY, Clerk.
By W. DE MARTINI, Deputy Clerk.

? CERTIFICATE TO JUDGMENT ROLL.

4"*

[Title of Court and Cause]

I, the undersigned, County Clerk of said
County, and ex-officio Clerk of the Superior Court
therein, do hereby certify the foregoing to be a
true copy of the judgment rendered in the above-
entitled action, and entered in vol. 5, Judgment
Book of said Court, at page 178. And I further
certify that the foregoing papers hereto annexed
constitute the Judgment Roll in said action.

43 Witness my hand and the seal of our Superior
Court affixed this 24th day of March, 1895.
[SEAL] A. A. BAILEY, Clerk.

[Endorsed :] Judgment Roll, filed March 24th,
1894.

A. A. BAILEY, Clerk.

NOTICE OF INTENTION TO MOVE FOR
NEW TRIAL.

[Title of Court and Cause.]

To the plaintiff above named, and Messrs.
Reddy, Campbell and Metson, his attorneys :

You will please take notice that the defendant
intends to and will move this Honorable Court to
set aside and vacate the verdict and decision
heretofore re ndered and entered in the above-
entitled action, and to grant a new trial thereof,
upon the following grounds, to wit:

First. — Insufficiency of the evidence to justify
45 the verdict of the jury.

Second. — That said verdict is against law.

Third. — Errors in law occurring at the trial and
excepted to by the defendant.

Said motion will be made upon a statement of
the case hereafter to be prepared and served upon
you.

Dated March 30th, 1894.

E. J. McCUTCHEN,
Attorney for Defendant.

tw
46 [Endorsed:] Service of a copy of the within

Notice of Intention, etc., is hereby admitted this
30th day of March, 1894.

REDDY, CAMPBELL & METSON,

Attorneys for Plaintiff.
Filed March 31, 1894.

A. A. BAILEY, Clerk.

STATEMENT ON MOTION FOR
NEW TRIAL.

[Title of Court and Cause.]

The above-entitled cause came on regularly for
trial on the 19th day of March, 1894. Messrs.
Reddy, Campbell & Metson, and J. P. Abbot
appeared as counsel for plaintiff, and Messrs.
E. J. McCutchen and W. S. Wells as counsel
for defendant.

A jury was duly impaneled, and after the open
ing statement by counsel for plaintiff, the follow
ing testimony was taken and the following pro
ceedings were had :

N. J. Stone, the plaintiff, was called as a wit
ness on behalf of plaintiff, and after being duly
sworn testified as follows :

I reside in the City and County of San Fran
cisco, State of California, and have resided there,

49 with the exception of eight years, since 1863. I
was born in New Hampshire, and will be fifty-one
years of age in June. I have a, family consisting
of a wife, four boys and a girl. I became
acquainted with defendant in the latter part of
1867. First had personal dealings with him in
the latter part of that year. I was connected
with the house of A. L. Bancroft & Company.
Knew for several years, from about 1873, that
defendant was at work upon a history or an en-

5 cyclopedia, and knew definitely with reference to
it in 1882. It was called "The History of the
Pacific States." He discussed with me his plans
with reference to the history, and engaged me in
the enterprise in February, 1882.

Question by plaintiff's counsel : State the cir
cumstances ?

Question was objected to by defendant as irrel
evant and immaterial.

rj Objection was overruled, and exception taken.
Exception No. 1.

A. Defendant sent for me in February, 1882,

Question by plaintiff's counsel: Did you make
any contract with him at that time ?

Question was objected to by defendant as
irrelevant and immaterial.

MR. REDDY : We propose to show the circum
stances under which the agreement was made.

52 Objection was overruled and exception taken
by defendant.
Exception No. 2.

A. I did. I was to go on in June or July
to take charge of the publication of the works
of Hubert H. Bancroft, and commenced on the
15th day of June. My salary from the 15th of
June, '82, until the 31st of December was two
hundred dollars per month. After the 31st of
December, they gave me fifty dollars more, mak
ing two hundred and fifty dollars, and gave me
fifty dollars on my back salary, making it two
hundred and fifty dollars ; it ran at two hundred
and fifty dollars until July, 1883, when it was
made three hundred dollars. In 1884, three hun
dred and fifty ; in 1885, four hundred, and I was
to receive four hundred and fifty in July, 1886,
and five hundred in July, 1887. The salary was
four hundred dollars to July and including April,
54 1886. The salary was being paid by A. L. Ban
croft & Company, a corporation comprised of
A. L. Bancroft and H. H. Bancroft, and others
sufficient to make up a corporation. I entered
into this arrangement that was represented in
the written contract in the early part of May,
1886. In that agreement the History Company
is referred to. It was decided, after the fire, to
do business under the name of the History Com-

55 pany. The property was taken out of the hands
of A. L. Bancroft & Company and put in the
hands of the History Company. Prior to this
agreement, I entered into an oral agreement first,
which it was agreed should be reduced to writing
and the agreement was reduced to writing on the
20th of August, as appears by the papers. It
was understood that the oral agreement was to
be reduced to writing, but the particular date on
which that was to be done was not stated, but we
acted under it immediately, and I drew only $350
salary in May instead of $400, and from May on
I drew only $350 in salary and acted on the
terms as stated in the written agreement. The
written agreement was made the day it bears
date, August 20, 1886 ; but I began immediately
after the oral agreement was completed. We
opened our bank account on the 18th of May as
the History Company. The defendant owned the

57 enterprise. No one except him owned any part
of it at that time, nor at the time the written
agreement was made. There had been no con
veyance to me of any property, nor was any con
veyance made to me on the 20th day of August.
All I had was the agreement. The History
Company was incorporated on the 23d of Septem
ber, 1886; that is my impression. I do not know of
or remember that any conveyance was made by

5 defendant to the corporation. After the incorpo
ration, I received certificates representing ten per
cent of the capital stock of the History Com
pany. I also received salary. Upon the organi
zation of the company I was elected Vice-Presi
dent. The duties assigned me under that office
were to employ agents and sell the works. I
continued to discharge the duties of Vice-Presi-
dent continuously up to May, 1892, up to May
20th, I think, and was then superseded by Mr.
Morrison.

Question by plaintiffs counsel : During the
time that you were in the management of the
sale of the History, etc., were any dividends paid ?

Question was objected to by defendant on the
Around that it was irrelevant and immaterial, and

upon the further ground that this is an action
brought by plaintiff against defendant to recover
60 salary under this agreement, and it does not make
any difference whether this corporation paid
dividends or did not, whether the business was a
profitable one or a losing one.

Objection was overruled and exception taken by
defendant.

Exception No. 3.

A. There were. We paid $90,000 dividend
in 1888, $105,000 in 1889, $85,000 in 1890, and

L sufficient in 1891 to make the total amount of
dividends, together with two of $5,000 each,
which were declared in 1892, a total of $285,000.
The first dividend in 1892 was declared on the
18th of January — $5,000 ; and another on the
llth day of March of $5,000 more. I believe
those are the correct dates. During the several
years I was engaged in the business, I devoted
all of rny time to it to the exclusion of everything
£2 in the world. During certain of those years I
was unembarrassed and not interfered with by any
one in the History Company.

Q. State the facts which you claim interfered
with you in the management of the business ?

Question was objected to by defendant as im
material and irrelevant under the pleadings in this
case.

Objection overruled and exception taken,

Exception No. 4.

A. First, by taking my name off the station
ery ; this was done in 1889. Second, by having
the letters opened by other parties, without pass
ing through my hands — also, in 1889; and, third,
by throwing restrictions about me as to engaging
agents, the advances made to them, and the salar
ies paid to them, etc.; fourth, by organizing a

64 bureau, as it was termed, inside the History Com
pany. Those acts interfered with me as they pre
vented me from employing agents, and belittled
me in the business, and made it impossible for me
to keep the run of the business as I had before.
In consequence of these acts we had a meeting
in 1889 at which defendant was present.

Question by plaintiff's counsel : What was his
conduct there, and what was the result of it?

Question was objected to by defendant as irrel-
evant and immaterial, and not responsive to any
issue raised in the case.

Objection was overruled and exception taken by
defendant.

Exception No. 5.

Witness continuing : We held the meeting for
about three days, and I finally told defendant
that I was there to do what they prescribed for
me to do, and if they wished me, I would whittle
66 the end of a pine stick ; but I told them it would
be impossible for me to carry on the business on
the lines they had prescribed. Defendant said in
reply: "Mr. Stone, we are entirely satisfied with
everything you have done. Your management
of the business has been superb. We have not a
complaint to offer in any respect." I asked him
what was the occasion of the meeting. He took
off his glasses, wiped them, put them on, and said,

67 "Mr. Stone, let us go and have some lunch," and
that was the end of the matter. Things moved
on in the usual lines after that, except that I was
restricted in regard to the employment of agents,
and my name was not on the stationery, and I did
not have the opening of letters. That was
brought up at the meeting at that time, and a
resolution was passed in regard to it.

The next disturbance occurred in May, 1892.
There was a good deal of friction. I did not

have charge of the business in the sense I had
had charge of it previously. I was interfered
with constantly by defendant. He had the
entire direction of the corporation from the fact
that the other directors were simply his wife,
daughter, Mrs. Stone and myself. The defendant
said Mrs. Bancroft and his daughter were put in
as directors for the purpoes of having a corpora
tion. They were entirely under his direction. I
69 do not think I ever heard defendant say whether
or not they were acting under his direction, or
whether they exercised an independent judgment.
When we had our meetings it was decided by de
fendant what was to be done, and they came and
did it. I have heard him ask one to read resolu
tions, and others to second them, and those reso
lutions were passed, and there never was a dis
senting voice. I attended the meeting of directors

70 of May 20th, 1892, at which I was superseded as
director and Vice-President. I received my
salary for May and for June, but not for July. I
have not received any salary since July, 1892. I
have applied for it to Mr. Borland, the Secretary
and Treasurer of the company.

Question by plaintiff's counsel : When you
made application for it, what response did you
receive ?

Question was objected to by defendant on the
' ground that he was not bound by any response
made to the witness by somebody else.

Objection was overruled and exception taken
by defendant.
Exception No. 6.

A. He told me that defendant requested him
not to pay me.

Witness continuing : I was in the full dis
charge of the duties of my office up to May 20th.
72 Then the correspondence was taken away from me
— the daily mail, orders and remittances and letters
in reference to business from agents, etc. Next
my stenographer was taken away.

Q. What next?.

A. The boy in the office was forbidden to keep
any letters for me.

Defendant moved to strike out this answer as
being a conclusion of the witness, and on the fur-

73 ther ground that the defendant was not bound by
it unless he gave the direction.

The Court stated that it must be connected,
and denied the motion, to which ruling defendant
excepted.
Exception No. 7.

Witness continuing : Next, my desk was
moved from its place outside the rail, and then it
was moved to different parts of the building, in
some places as far as 150 feet away. It was
taken away and the casters were taken off so that
I could not take it back without extreme diffi
culty ; I couldn't bring it back without carrying
it. The ink was turned over the top — all over
the papers, the desk, the correspondence and
everything else. Two inkstands were upset and
a saw-horse was put on the desk. My chair was
taken away, and finally my desk was taken up
stairs on the fifth floor. In the meantime, the
75 furniture of the office was torn up, and the Ban
croft Company was moved upstairs, and they oc
cupied nearly all the space formerly occupied by
the History Company. My desk was finally
brought back from upstairs, but placed in a posi
tion where I couldn't sit down at it, and where I
couldn't get any light on it. The safe was locked,
the combination was changed, and the books,
when I demanded certain books, they were given
to me.

76 Question by defendant's counsel : Do I under
stand defendant did all these things ?

MR. REDDY : Yes, that he ordered those
things done, that he was the cause of it.

O 7

Witness continuing : I was utterly incapable
of forming any intelligent idea of the business, or
performing any intelligent work. I was utterly
incapable of transacting business. The safe was
locked, the combinatian was changed so that I

couldn't unlock it. The contracts and important

documents were kept in the safe, and I could only

get them when Mr. Dorland chose to go in and
open the safe. The employees did not obey my
orders. I attempted to go in the inside room
where defendant was at work, and speak to him,
and ask him what he meant by the manner in
which he was treating me ; and he replied by
asking Mr. Morrison to put me out of the room.
This was after the occurrences which I have re-
78 peated. Morrison stepped up to the door and
pushed me out through it. He was Vice-Presi-
dent. I did not make any other attempt person
ally to converse with defendant with reference to
the discharge of my duties, except at the time the
assessment was put on. That was in September,
'92. I omitted to say defendant pushed my desk
away from me one day when I was writing. He
pushed it seven or eight feet away when I stood

79 writing at it. I told him that he must not do that ;
he was going altogether too far. Nothing else oc
curred at that time.

Question by plaintiff's attorney : Did you
ever have any conversation in which defendant
said or spoke anything about beggaring you, or
anything of that sort ?

A. That was previously, along about the 15th
day of May. That was a day or two before I was
deposed as Vice-President and director.

Q. State what occurred ?

Question was objected to by defendant on the
ground that the occurrence took place prior to
the 1st day of June, 1892, and the witness admits
that he was paid for all services rendered by him
up to and including that time.

Objection was overruled, to which ruling de
fendant excepted.

Exception No. 8.

3 1 Witness continuing : He said : " G d

d n you, I will beggar you ; I will beggar

your wife ; I will beggar your children ; G d

d n you, I will make beggars of you all." I

had had some conversation with defendant of a
heated nature with regard to the actions of himself
and Mr. Morrison in reference to myself ; and had
charged defendant with conspiring with Morrison
to drive me out of the business. He said he had

82 not done so. I replied, I knew he had, for I had
evidence. I had my coat on my arm and was
starting to leave the office, and he followed me a
few steps arid made these threats to me. A few
days after that he sued me for $107,000. The
suit was filed against me to deprive me of my
stock, to break the contract, and have the stock
returned with the dividends I had received ; and
also charging me with a violation of my contract,
fraud, conspiracy, etc. After about sixteen months
the suit was dismissed, and has not been renewed
to my knowledge. At the time defendant made
this statement to me about beggaring me, Miss
Hayes and Mrs. Hambly were present, and Dor-
land was a few feet away.

Q. Did defendant assign any reason why he
would beggar you, or wanted to beggar you ?

A. We had had a very heated conversation, and
I told him I should not permit him to carry out
$* the plans I believed he was inaugurating. That
was all. The next day or two I spoke to defen
dant, asking him something about some Mexican
business in reference to the History. He gave
me a very impudent answer and told me not to
speak to him.

Question by plaintiff's counsel. What was the
answer ?

Question was objected to by defendant as irrel-

85 evant and immaterial, on the ground that it took
place before the time that the defendant refused
to pay plaintiff's salary.

Objection was overruled, to which ruling de
fendant excepted.

Exception No. 9.

A. He declined to have anything to do with
me. He said : " I haven't anything to say
about it," and not to speak to him about any
thing;. There was some other conversation, the

Q£

exact words of which I do not remember. The
next time he came near me after that was when
he pushed my desk ; that was in July, 1892.
About that time, or shortly after that, I went to
go in his room to speak to him, when Mr. Mor
rison pushed me out of the door. I next met de
fendant to talk to him at the meeting at the time
of the assessment, which I think was November
29th, 1892. An assessment was then levied.
3 j Question by plaintiff's counsel : For how
much ?

Question was objected to by defendant as irrel
evant and immaterial.

Objection was overruled, to which ruling de
fendant excepted.

Exception No. 10.

WITNESS : The assessment was for $50,000.
Q. Was there any money in the treasury at
the time that assessment was levied ?

88 Question was objected to by defendant.

Objection was overruled, to which ruling de
fendant excepted.
Exception No. 11.

WITNESS : There was somewhere from five to
seven thousand dollars.

Question by plaintiff's counsel : They pro
ceeded so far with the assessment as to advertise
your stock for sale under that proceeding, didn't

Question was objected to on the ground that it

was irrelevant and immaterial.

Objection was overruled, to which ruling de
fendant excepted.

Exception No. 12.

A. Yes, they did, and the sale of the stock
was prevented by injunction by a suit, and is still
enjoined by a suit pending in San Francisco. At
the time the assessment was levied, I was present,
90 and Morrison arose to put me out of the room.
He opened the door and came and stood by me,
and went to put his hand on me, and I said,
" Don't you put your hand on me," that I had as
much right to be there as he had. He said, if I
had a right to be there, of course he didn't want
to put me out, but he would refer the matter to
defendant. Defendant said to throw me out of
he window ; that he could throw me out of the

9i window as far as lie, defendant, was concerned.
Morrison then suggested that we adjourn, but de
fendant said no. Then they held a consultation
among themselves, a whispered consultation, and
concluded to go on. Defendant said, ''We will tro
on with the meeting," and got up and opened all
the doors wide, and they read the resolution in re
gard to the assessment, and I arose and said, " Mr.
President and stockholders of the History Com
pany, I object to levying an assessment ; it is

unnecessary, and I protest against it." He said to
me in reply, " Shut up, or I will throw you out of
the window." I sat down and the resolution was
passed. As soon as it was passed he and the
others started to leave the room. Defendant
came back and said to the Secretary of the His
tory Company, " Don't you pay any attention to
that thing sitting over there in the corner," and
went out of the room. During the years I have
a* named, up to May, 1892, I was in attendance at
the office at business always ; I was never away
except when detained by sickness. I had some
vacations, but I never was away from that busi
ness a day that I did not receive some communi
cation from the company ; in other words, I did
not receive any relaxation. I did everything in
selling books, attending to the business of that
company in every particular to the detriment of

94 my health and pleasure. After May, 1892, I
visited the place regularly and attempted to dis
charge my duties. I did this up to about the
31st of December, 1892. At that time my desk
was moved upstairs again, and then moved down
again and placed in that position where I could
not use it ; I could see nothing ; I could do noth
ing ; I couldn't sit at the desk. I made applica
tion repeatedly to both Dorland and Morrison for

instructions as to what I should do or should not

do. Morrison was then Vice-President and

Dorland Secretary and Treasurer.

Question by plaintiff's counsel : What reply
did you get from Morrison when you applied to
him for instructions as to what you should do ?

Question was objected to by defendant as irrel
evant 'and immaterial, and as defendant cannot
be bound by statements of Morrison.

Objection was overruled, to which ruling de-
96 fendant excepted.

Exception No. 13.

A. Morrison told me I had no right there.
This was upon my applying to him for instruc
tions in the performance of my duties, and in
reference to information as to certain collections.

Q. What was the reply of Dorland ?

Question was objected to by defendant on the
ground that defendant was not bound by the
statements of Dorland.

97 MR. REDDY: We expect to show he was author
ized to give this very answer, and was ordered to
do the very thing he did do, and that Mr. Ban
croft ordered it.

THE COURT : If you expect to follow it up it
will be proper.

A. Mr. Dorland said he had been instructed
to take the letters away from me. I continued
to visit the business place of the History Com
pany regularly until the 31st of December, 1892.
I ceased to go there for the reason that my desk
was taken upstairs, and kept there for several
days, and then brought down again and put in the
center of the aisle, where I could only stand up by
it, and it was put where I couldn't get any light, or
put a chair to sit upon, by it, and in a draught
from the door. I could not do any work where
the desk was put, because there was no chair
there, and it was impossible for me to place a
on chair there, and I could not work because I had
nothing to work with. I couldn't see, and it was
in the draught from the door. There was not
sufficient light, either artificial or natural, to per
mit a person to write, or to see their writing.
When I found that condition of things, I quit
going there, but before doing so, or about that
time, I went and served notice upon Mr. Dorland
— a verbal notice.

100 Question: To what effect? What did you say
to him?

A. I demanded of him that he permit me to
go to work, to make a place for me to go to work
under my contract — the contract with defendant.
That I was there for that purpose, and I wished
him to distinctly understand that I was ready and
willing at all times to perform my duties under
the contract, and always had been ready and will-

101 m% *° g° ^° WOI%k. I have not engaged in any
other business since that time until recently — the
middle or latter part of 1893. It was such
business that I was always ready and am now, to
perform the contract. I have abandoned the
business I engaged in. I have not been able to
realize a dollar from it. I gave this notice to
Mr. Dorland in the latter part of December and
the latter part of January. I repeatedly told
him I was ready to do the work, but I took a wit-

102 ness on this occasion with me, a Mr. Drew, who
took the conversation down in shorthand.

Q. What was the reply made by Dorland on
that occasion ?

Question was objected to by defendant on the
ground that it was irrelevant and immaterial,
and upon the ground that defendant was not
bound by the statement of Dorland.

103 Objection was overruled, to which ruling de
fendant excepted.

Exception No. 14.

A. Dorland said he had been instructed by
defendant not to let me have the correspondence,
and not to permit me to do any work there. He
was Secretary and Treasurer of the History
Company, and owned ten shares of the stock.
He was under the direction of defendant. I

104 know that because he (Dorland) said so. I know
nothing further about Dorland being at the com
mands of defendant further than what he said to
me.

Question by plaintiff's counsel : State, if you
know of your own knowledge, of defendant being
present with yourself and Dorland and others,
and his giving instructions for actions, and it being
obeyed by Dorland ?

105 MR. McCuTCHEN : I object to that question.
The fact that Dorland had at some time in Mr.
Bancroft's presence obeyed his instructions at
some meeting of the company, would not by any
means lead to the conclusion that on this occa
sion he was obeying the direction of defendant.

Objection was overruled, to which ruling de
fendant excepted.
Exception No. 15.

io6 A. I do. I know it, because it is in a series
of resolutions which were copied in the minutes.
I saw them in Mr. Bancroft's handwriting. They
were directed to Mr. Hartwell ; they were subse
quently copied in the minutes. The originals have
been in the safe of the History Company.

[The minute-book of the History Company
was produced and witness's attention directed,
by his counsel, to pages 32 and 33.]

Witness continuing : I do not know of any
' other resolution or motion passed and being
ordered by defendant, except by hearsay ; I do
not recollect any other. There may have been
other instances, but I do not recollect them at
this moment. When I addressed Dorland con
cerning my services, I addressed him as Secretary
and Treasurer of the corporation, and he answered
me in that capacity. I have never, at any time,
neglected any of my duties. I will swear that I
Iog have not ; never at any time has any demand been
made upon me for the performance of any duty
which I did not promptly discharge.

(Book of " Literary Industries " shown to wit
ness.)

This is the 39th volume of Bancroft's works,
published November 30, 1890, by the authority
of defendant. I know it was published by his
authority, because he authorized me to print it

IO9 and publish it, and bind it and distribute it.

MR. REDDY : I offer in evidence, and ask to
read, from several places in this History bearing
upon the question of how plaintiff discharged his
duties under this contract, as the declaration of
Mr. Bancroft.

The offer was objected to as irrelevant and im
material; and particularly so at the stage of the
case at which it was offered.

MR. REDDY : I desire to read from this book as
the declaration of Mr. Bancroft to the effect that
Mr. Stone discharged his duties faithfully, up to
this time, and he was really a great promoter and
the cause of its success by his faithful manage
ment of the enterprise which is in issue and the
issue of this cause.

THE COURT : It seems to me it would be admis
sible under certain conditions. It certainly would
be admissible in rebuttal if it is brought back to
m Mr. Bancroft.

MR. REDDY : I think it is g^ood original evi-

o o

dence. I would like to put it in now so that
counsel may have a full view of our case.

THE COURT : Very well. Which ruling was
excepted to by defendant.

Exception No. 16.

Thereupon counsel for plaintiff read the follow
ing extracts :

H2 Page 586. " Literary Industries " :

41 Further than this, not only would I print, but I
would publish. I had no delicacy now in placing the
imprint of the firm on my title pages. The world might
call it making merchandise of literature, if they chose; I
knew it was not, that is to say, in a mercenary sense. There
was no money in my books to the business; hence, the
business did not specially want them. In the publication
of several extensive works, the house had acquired a na
tional reputation, and I was convinced that it would do
better with this series of Pacific States Histories than any
other firm. So I engaged Mr. Nathan J. Stone, lately of
Japan, but formerly of our house; a man of marked ability,
of much experience in our establishment and elsewhere)
to devote himself to the publication and sale of my books.
Transferring to him the business connected therewith, I
went on with my writing more vigorously, if possible,
than before. I requested the Mayor and the Governor to
visit the library, inspect the work, and then give me a
certificate expressing their belief in the completion of the
work as then promised, which was at the rate of three or
four volumes a year."

Page 793: " Nathan Jonas Stone was born in Webster,
Merrimac County, New Hampshire, June llth, 1843, which
spot was likewise the birthplace of his father, Peter
Stone. Both of his grandfathers were captains in the
army, one serving in the Revolutionary War, and the
other in the War of 1812. Mr. Stone's early life was spent
on a farm; working during summer, and attending
school, or teaching, in winter. No better training can be
devised for making strong, self-reliant men; no better
place was ever seen for laying the foundations of firm
principles, and knitting the finer webs of character, than
a New England country home. In 1863, being then
twenty years of age, Mr. Stone came to California by
way of Panama, arriving in San Francisco on the 18th
day of August, with just ten cents in his pocket. Invest-

*n& ki8 capital in Bartlett pears, he seated himself on the
end of a log, near the wharf where he landed, and ate
them. Thus fortified for whatever fate might have in
store, he set out to find work. He knew not a soul in
the city, having thus cast himself adrift upon the tide of
his own native resources, in a strange country, at this early
age, with cool indifference parting from his last penny,
well knowing that there was no such thing as starvation
in store for a boy of his mettle. Times were very dull,
and easy places with good pay were not abundant. Nor
did he even search for one; but after walking about for
the greater part of the day, making his first tour of ob
servation in the country, about 5 o'clock he saw posted

116 on Kearny Street a notice of workmen wanted, and was
about making inquiries concerning the same, when he
was accosted by a man driving a milk wagon, who asked
him if he was looking for employment. Stone replied
that he was; whereupon, the man engaged him on the
spot, at forty dollars a month and board. Three months

-afterward he was offered, and accepted the superintend
ence of the Industrial School farm, acting later as teacher
and deputy superintendent. In 1867, he entered the house
of H. H. Bancroft & Company, acting as manager first
of the subscription department, and then of the wholesale
department. In 1872, he became interested in the awaken
ing of civilization in Japan, and opened business on his

117 own account in Yokohama, where his transactions soon
reached a million of dollars a year, importing general
merchandise and exporting the products of the country.
He placed a printing press in the Mikado's palace, which
led to the establishment of a printing bureau, and the
cutting out and casting into type of the Japanese charac
ters. Obliged by ill-health to abandon business, he
returned to San Francisco in 1878 completely prostrated;
but after a summer at his old home, he recuperated, his
health still further improving during a four years' resi
dence at Santa Rosa, California. Mr. Stone had followed
me in my historical efforts with great interest from the

118 first. He had watched the gradual accumulation of ma
terial, and the long labor of its utilization. He believed
thoroughly in the work, its plan, the methods by which
it was wrought out, and the great and lasting good which
would accrue to the country from its publication. He
was finally induced to accept the important responsibility
of placing the work before the world, of assuming the
general management of its publication and sale, and de
voting his life thereto. No one could have been better
fitted for this arduous task than he. With native ability
were united broad experience and a keen insight into men
and things. Self-reliant yet laborious in his efforts, bold
yet cautious, careful in speech, of tireless energy, and

119 ever jealous for the reputation of the work, he entered
the field determined upon success. A plan was devised
wholly unique in the annals of book publishing, no less
original, no less difficult of execution than were the
methods by which alone it was made possible for the au
thor to write the work in the first place. And with un
flinching faith and loyalty, Mr. Stone stood by the
proposition until was wrought out of it the most complete
success."

Witness continuing : This book was published
November 20th, 1890. I have a letter from de
fendant to Mr. Dorland of recent date respecting
the engagement of my services. This letter was
written by defendant. I have seen him write re
peatedly, and am familiar with his handwriting
and his signature. This is in the handwriting of
Mr. Hubert Howe Bancroft. The letter is dated
August 9, 1893, and reads as follows :

" Aug. 9th, 1893.
Dear Tom:

Do you suppose we could get N. J. Stone to

take charge of the History Company and work the Book

121 of the Fair for all it is worth on the Pacific Coast. It is
a great success here, and in connection with the Midwin
ter Fair there, I am sure a large and profitable business
can be done by the right kind of a man. The History
Co. now handle the Book of the Fair at 60 per cent off on the
Pacific Coast, or such parts of it as they want, and a good
business should be done in Cal. on write-ups and adver
tisements.

H. H. B.

Just got 3 orders for the $500 edition, taken by a new
man, not the one who took Higgenbotham for the first
$1,000 edition last week."

122 [Admitted in evidence and marked Plaintiff's
Exhibit 1.]

I received that in a letter from Mr. Dorland,
dated August 23, 1893, as folllows:

" San Francisco, California, August 23, 1893.
Dear Mr. Stone:

I received the enclosed letter from Mr.
Bancroft, it explains itself; what do you think of the
proposition. They have sold something like $210,000 of
the work already.

Yours truly,

123 T. A. C. Dorland."

[Marked Plaintiff's Exhibit 2.]
That is in the handwriting of Mr. Dorland.

Q. Did you make any reply to their request ?
A. I did not ; no, sir.

CROSS-EXAMINATION.

The agreement which bears date August 20,
1886, was practically made between defendant

124 and me in May, 1886, and the agreement of Au
gust 26, 1886, contained only the terms of the
arrangement made between me and defendant in
May, 1886, and I do riot think it contains anything
else ; I don't think -there was any element in the
agreement of May, 1886, which "was not subse
quently embodied in the agreement of August,
1886. Between May, 1886, when the oral agree
ment was made between me and defendant, and

August, 1886, when the written agreement was
j 2 c

° executed, I carried on the business substantially

the same as I did subsequently, after the agree
ment was executed in August. So far as my in
terest in the business was concerned, it was the
same subsequent to May, 1886, as it was subse
quent to August, 1886. Prior to May, 1886, the
•

business which is referred to in the agreement
and set out in the complaint, was carried on by
A. L. Bancroft & Company under the name of
I26 the " Bancroft's Works Department" of A. L.
Bancroft & Company. Subsequent to May, 1886,
it was carried on under the agreement which I
made with defendant. At all times from May,
1886, up to the formation of the corporation of
the History Company, the business referred to in
this agreement was done either under the oral
agreement or under the written agreement.

I understand that the written agreement itself

127 conveyed to me a one-tenth interest in the busi
ness. From the date of the verbal agreement,
made in May, 1886, I believe I was the owner
of a one-tenth interest in the business, and also, I
had a contract running for ten years. It was my
impression that from the time the agreement was
made, I was the owner of a one-tenth interest in
the business, with a contract running over ten
years at a stipulated salary. As I have testified,
the History Company, the corporation referred to

T 28

in this agreement, was formed, ten per cent of the
capital stock was issued to me. I received that
ten per cent under this agreement. That was the
only agreement I had with defendant. We had
other agreements with reference to other matters.
In reference to this matter, it was the only agree
ment by which I was entitled to ten per cent of
the capital stock of the corporation. After the
corporation was formed, it took the property men-
I29 tioned in this agreement; it got all of the prop
erty. I am not aware that defendant ever did
turn over to the corporation anything which he
had agreed by this contract to turn over ; so far
as I know, I think he performed the contract in
that respect. After the corporation was formed,
the Treasurer of the History Company paid me
the compensation which I received. He was un
der my orders.

130 The compensation was paid me in accordance
with this agreement. I am not aware that I re
ceived any compensation from the History Com
pany for salary subsequent to this incorporation,
except what I received under this agreement. I
was Vice-President of the corporation for a long
time after it was formed.

Q. Did you not receive all the compensation
paid you by the History Company from the date
of its formation up to May, 1892, as Vice-Presi-

131 dent?

A. Yes, I think I did.

(Book of By-Laws of the History Company
shown to witness.)

I recognize this as the Book of By -Laws of
the History Company. I was only paid one sal
ary by the History Company. These by-laws
were adopted on the 20th of October, 1886.

(Section 2, Article VIII, of the by-laws was

132 offered in evidence by defendant, and reads as
follows :

" The salary of the Vice-President shall be
$350 per month."

Q. That salary was paid you as Vice-Presi-
dent for how long ?

A. I received a salary of $350 per month
until the end of June, 1892.

Q. How long did you receive that salary as
Vice-President ?

133 A. My impression is there was some repeal
or some action taken in reference to that by-law
in the early part of 1889.

Q. Then, from the 20th of October, 1886,
until some time in 1889, you received a salary of
$350 per month as Vice-President of the History
Company ?

A. Yes, I received that salary under my con
tract, I presume ; that is the way I understood
it. I understood it in that way when I signed
^ these by-laws. My contract did not make me
Vice-President.

Q. I ask you whether the salary of $350 per
month, which vou received from October 20,

188 6, down to the date of the repeal of this by
law in 1889, was not paid you as salary as Vice-
President under this by-law ?

A. I did not consider it in that way. I con
sidered I was receiving that salary under the
Xor terms of that contract.

Q. When you signed this declaration on the
20th of October, 1886, did you understand that
that salary of $350 per month payable to the
Vice-President, was to be paid to you ?

A. I understood I was to draw $350 per
month salary on account of that agreement.

(Question repeated.)

A. I did not consider it in that way. I never
thought of it in that connection.

136 Q. Then did you understand when you signed
this by-law, that the manager of the History
Company was to receive $350 per month under
your contract, and that the Vice-President of the
History Company was to receive $350 per month
under this by-law ?

A. No, sir.

Q. What did you understand ?

A. I understood I was to draw $350 per
month, and was to act as Vice-President of the
" company. I was elected Vice-President of the
company. As I said before, I never looked at it
in that connection. I looked at it as I was to
receive that money under my contract. From
the date of the formation of the History Com
pany down to 1892, the business was largely under
my control, but not altogether. Between May,
1886, when the oral agreement was made, and
August, 1886, when the written agreement was
made, I had charge of this enterprise. I had
charge of the books. My salary was entered on
the books ; it was entered in the salary account
and carried to the expense account. It was
always entered upon the books from the date of
the written agreement, and was one of the ex
penses of the business, and all the profits which
were divided, either in the shape of dividends or
in any other way, were net profits after the de-

139 duction of all expenses, including the deduction
of my salary. My salary was never charged to
defendant individually on the books, and he never
paid the salary individually; the salary was paid
to me by the cashier who was under my control
and control of defendant.

Q. This $350 per month was taken by you
then from the money belonging to the joint ven
ture ?

A. It was not taken by me ; it was paid me
by Mr. Hart-well, the Treasurer, and came out
of the moneys belonging to the joint venture The
arrangement made between me and defendant in
May, 1886, was crystallized by the agreement in
August, 1886, and was that I was to get 10 per
cent of the profits after all the expenses were
paid, including my own salary. I was to have
ten per cent of the entire business and ten per
cent of the net profits.

j^! I don't know that the taking of my name oft'
the letter-heads was the first conduct on the part
of defendant of which I complained ; but it was
one of the things. I do not know how it was
done ; that is one of the things I do not under
stand. I do not know how it was done. I have
no idea how it was done ; I do not know why it
was done. I know it was done by a resolution of
the Board of Directors at defendant's written

request. I was a member of the Board. I was
there at that time. I think I voted for the reso
lution. I think my name was taken off the letter
heads pursuant to a resolution of the Board, for
which I voted ; and yet I take the stand here and
complain that that is one of the things which

142 prevented the discharge of my duties under this
contract. I knew this morning I had voted for
it. There were only two adverse votes in that
book. There was no use for me to vote against
it. I knew there was a cut-and-dried arrange
ment, and that opposition on my part would be
futile. I seconded the resolution and voted for
it. I know that resolution was directed to every
officer of the company. It affected all the officers;
I found a grievance in that, because I thought
that in taking my name off the letter-heads, it
would injure the business ; it had always been on
there from the time I was first connected with
the business. I thought it would be noticed by
outside parties. Defendant's name had been upon
the letter-heads for a long time before this reso
lution was passed, but he had nothing to do with
the correspondence in the field. I was very
familiar with the business of the company. I

143 knew what should be done to make it a success.
I was to get 15 per cent of the profits, and yet I
was voting for a resolution which I thought

145 would injure the business and decrease my profits;
but notwithstanding this indignity to which I was
subjected in 1889, I continued to act as an em
ployee of the company, and from that time on
received $350 per month until the end of June,
1892, which was always paid to me by the cash
ier of the History Company, and charged upon
the books of that company to the expense account.
It was never charged to defendant individually to
my knowledge. At the meeting in 1889 which
lasted three days, I made objections to what de
fendant proposed to do, and said I would do
what he directed me to do.

Q. Then did you regard yourself as under the
control of defendant at that time ?

A. Defendant always directed the History
Company.

Q. Answer iny question. Did you regard
yourself under the employment of defendant at
!47 that time ?

A. I regarded myself as a member of the His-
tory Company.

Q. Were you working for defendant at that
time ?

A. No, I presume I was working for the His
tory Company.

Q. And at all times from the organization of
the History Company in 1886 down to 1892, you
were working for the History Company ?

148 A. I was working nominally for the History
Company, but I was working for defendant under
the contract. In 1889 defendant refused to give
me the necessary money to employ agents, and
this was repeated after that all the time, notwith
standing that I continued there in the discharge

a o

of my duties to the best of my ability.

Q. And were you paid your salary by the
History Company ?

A. Every month I received my salary. The
last salary I received from the History Company
for services performed was in the month of June,
1892. During July, 1892, I was there every day
writing letters. During August, 1892, 1 was there
occasionally writing letters — not very often, and
the same during September, 1892. In October,
1892, 1 was there but I did not do much of any
thing. In November, I was there all the time and
did less.

ICQ Q. How much time did you spend there in
November ?

A. I was there part of the time ; I may have
been away a few days. I was ill once or twice
and away a few days.

Q. And in December, 1892?

A. I was there most of the time. About the
end of December I went there and found my desk
in a place where I couldn't work, and left. In

151 January, 1893, I went there every day, and in
February, 1893, I went there until I served this
notice upon Mr. Dorland, the early part of 1893,
and since then, I presume I have been in there
twenty-five times. The conversation which I had
with Morrison was in July, 1892. The conversa
tion which I had with defendant when he said he
didn't want me to talk to him was on the 22d day
of May, 1892 ; but notwithstanding that, I re
mained there. I made a demand on Dorland,

^ the Treasurer, for the salary claimed to be due
me after the 20th of May, 1892. I am under
the impression I made other demands, but it is
not clear in my mind. I did not make any de
mand on defendant, and have not spoken to him,
with the exception of a conversation that we had
one Sunday afternoon, that was about three or
four weeks ago. He telegraphed Dorland he
would like to have me meet him as a special favor
one Sunday afternoon, just after these letters
came from Mr. Dorland.

(Defendant here offers in evidence complaint in
case of N. J. Stone vs. The History Company,
pending in the Superior Court of the City and
County of San Francisco, State of California,
which complaint is in the words and figures fol
lowing, to wit :)

" In the Superior Court of the State of California in
and for the City and County of San Francisco,

54
I54 N- J- STONE,

Plaintiff.

THE HISTORY COMPANY (a Corporation),

Defendant.

Plaintiff complains of defendant aboved named and
for cause of action alleges:

1. That the said defendant, the History Company, is
and was at all the times herein mentioned, a corporation
duly organized and existing under and by virtue of the
laws of the State of California.

2. That between the 30th day of June, 1892, and the
first day of August, 1892, at the City and County of San
Francisco, State of California, the plaintiff performed
work and labor and rendered services for the defendant
at its special instance and request as its manager.

3. That for said work, labor and services the said de
fendant promised and agreed to pay the said plaintiff the
sum of three hundred and fifty dollars per month.

4. That the defendant has not paid the same, nor any
part thereof.

Wherefore, plaintiff prays judgment against the said
defendant for the sum of three hundred and fifty ($350)
dollars, with interest thereon at the rate of seven per cent
per annum from the 31st day of July, A. D. 1892, and for
costs of suit.
I56 REDDY, CAMPBELL & METSON.

Attorneys for Plaintiff."

(Witness is handed a second complaint in an
action instituted by him against the History
Company.)

WITNESS : I verified that complaint about the
day it bears date.

Said complaint was filed in the Superior Court
of the City and County of San Francisco, State

157 °^ California, and is in the words and figures
following, to wit :

"In the Superior Court of the State of California in and
for the City and County of San Francisco.

N. J. STONE,

vg Plaintiff.

THE HISTORY COMPANY (a Corporation),

Defendant.

Plaintiff complains of defendant above named and for
cause of action alleges:

158 1. That the said defendant, the History Company, ia
and was at all the times herein mentioned, a corporation
duly organized and existing under and by virtue of the
laws of the h'tate of California.

2. That between the 31st day of July, 1892, and the
first day of September, 1892, at the City and County of
San Francisco, State of California, the plaintiff per
formed work and labor, and rendered services for the de
fendant at its special instance and request as its manager.

3. That for said work, labor and service the said de
fendant promised and agreed to pay the said plaintiff the
sum of three hundred and fifty dollars per month.

4. That the defendant has not paid the same, nor any

159 part thereof.

Wherefore, plaintiff prays judgment against the said
defendant for the sum of three hundred and fifty dollars
($650.00) with interest thereon at the rate of seven
per cent per annum from the 31st day of August, A. D.
1892, and for costs of suit.

REDDY, CAMPBELL & METSON,

Attorneys for Plaintiff."

Witness continuing : I did not say I had a
conversation with Dorland in January. I said it

160 was in the early part of 1893. I could not tell
whether it was in the month of January or Feb
ruary. I could not state within sixty days of the
time it took place. I have no way by which I
could fix the time. I should think it was a
month or six weeks after the time I went there
and found my desk in a place where I couldn't
work. I was at the History Company's office
nearly every day up to the time the conversation
with Dorland took place. I do not know exactly
when that was. After that time I engaged in
other business. For a little while I was giving
my attention to the publication of a work called
"Femina," for two or three months. I think it
was May, June and July, somewhere along there.
During all that time I considered that I was still
engaged under this contract with the History
Company, and did very little in relation to the
" Femina " business I started in to publish that
book and then decided not to. This was in 1893.
I was to have an interest in the publication of
the " Femina " book ; I was in there in the
capacity of having an interest in it ; then I ar
rived at the point where I disposed of my inter
est in it. I did have an interest in it for a time.
My interest was one-half and the other one-half
was owned by Dr. Miller. I think my interest
began somewhere in May or June. It ran along

163 about three months ; I would not be positive as
to the date. There were no writings to define
my interest ; we had not drawn papers between
ourselves. I devoted two or three months to the
business. Considerable of that time I was about
the History Company building, but I did not go
there regularly. I was devoting some of my
time to that business during the time covered by
this suit. I think I had ceased my engagement
with Dr. Miller at the time the complaint in this
action was filed, September 7th, 1893. About
two or three months of the time covered by this
suit, I was engaged in the publication of "Fe-
uiina." I had known Miller for a number of
years. I do not know when I first consulted with
him about the publication of the book ; I think
about May, 1893.

Q. You have testified you went into the busi
ness in May, 1893. Did you have a preliminary
165 discussion with Miller ?

A. I had talked with him several times, yes.
I went into the business a few weeks after I be
gan the discussion of the enterprise with him. I
had had conversations with him a number of times,
it might have been as far back as a month or two ;
it may have been as far back as April or March,
I don't think further than that, but I would not
say. My impression is it was not further back

1 66 than March. I have known him a number of
years and have seen him in the office of the His
tory Company. He never went there to see me
about the publication of "Femina" by the His
tory Company. He did not come to see me in
the office of the History Company in July, 1892,
in reference to the publication of that book. I
am positive I did not tell him in the office of the
History Company in July, 1892, that I would

advise him not to have his book published by the

167

' History Company as it was about to go to pieces.

I never at any time made him a statement that
it was about to go to pieces, and that I would ad
vise him not to have anything to do with it.
While 1 was at work on this book of " Femina," I
considered the contract set out in the complaint in
this action as binding upon me. I considered that
the History Company was entitled to call on me
any time. I have always been ready and am
ready to-day to render services and consider that
the History Company was entitled to call upon
me any day to perform services as manager for it,
and it was so understood by Dr. Miller that I would
make no arrangement with him that was not sub
ject to the call of the History Company. I con
sidered that all the time I was with him, this
contract was remaining in full force and effect for
its full term, and that the History Company was
entitled to call upon me at any time.

169 (Witness is shown press copy of a letter ad
dressed to Professor J. R. Campbell.)

Witness continuing : "This is a press copy of a
letter written by me as manager of the 'Femina'
Company," and the following portion of such let
ter is offered and read in evidence:

"1018 VALENCIA ST., SAN FRANCISCO, CAL.
MY DEAR SIR AND FRIEND:

Your esteemed favor of June 8th reached me in due
course, and I was very glad to hear from you. You will
note by the above that I am no longer at the History
1 7° Company. I have an enterprise on hand to which I shall
devote my entire attention just as soon as I am free from
the History Company and I hope thac will not be very
long, for I expect to get my second and large suit to trial
within the next few days; at any rate, I propose to free
myself so that I can do business again."

Q. You say, notwithstanding that declaration
to your friend, Professor Campbell, you under
stood you were in the employment of the History
Company and liable for a period of six or seven
years after the writing of this letter, to be called
upon to perform services as manager ?

A. Any day in the world when the History
Company called upon me to come, I was ready to
go ; yes, I said I hoped to be free, and I hope so
still.

(A press copy of a letter written to Mrs. L.
Owen is shown witness.)

Witness continuing : The signature to that let
ter is mine. This is a copy of a letter addressed

172 by me to Mrs. Owen on July 7th, 1893. This
was the month of July, 1893, and I was endeavor
ing to obtain compensation from the defendant in
this suit.

(A portion of the letter referred to was offered
and read in evidence, as follows :)

" I am pleased to tell you that everything looks well,
ai d best of all, that I am now free so that I can devote
my whole time to the business without any interference or
trouble. We have plenty of books on hand and can fill
jy- orders promptly. Our second lot of bottles have arrived,
so there will be no delay as regards medicines. We are,
in fact, supplied with everything but the thermometer,
and this will be here soon."

Q. Notwithstanding this declaration to Mrs.
Owen, in this letter, you claim you were then in
the employment of the History Company under
this contract ?

A. Yes, it was so understood.

(Press copy of another letter shown witness.)
174 WITNESS : This letter was written by me.

(A portion of the letter dated July 10th, 1893,
addressed to Honorable E. W. Davis, Santa Rosa,
is offered and read in evidence, as follows :)

" Dear Mr. Davis:

As you will notice by this letter
head, I am free again to engage in business and I can as
sure you it is very gratifying to me."

Q. And you were seeking compensation at the

175 rate of over ten dollars a day from defendant for
twenty-one days more of the month of July ?

A. I stood ready to perform my duties at all
times, and stand there to-day.

Witness continuing . I could not tell you
when the arrangement between Miller and me
came to an end ; it came to an end because I de
cided not to go on with the business. It termin
ated by selling my interest to Miller. No part
nership existed between us. We had a verbal

176

understanding ; we never consummated it ; it was

simply a verbal understanding. The verbal un
derstanding was that there was to be a partner
ship at some time in the future, but it never was
done in fact.

(Paper handed to the witness :)

I have seen this paper before ; the signature to
it is mine.

(The paper is offered in evidence and read. It
177 is in the words and figures following, to wit :)

" WHEREAS, the partnership existing between John A.
Miller, party of the first part, and Nathan J. Stone, party
of the second part, heretofore existing under the firm
name of The Femina Company, has been dissolved by
mutual consent, and said party of the second part for a
valuable consideration, the receipt whereof is hereby
acknowledged, has sold, transferred and set over unto the
party of the first part all the right, title and interest of
the party of the second part in and to all the property
owned, used and controlled by and in said partnership

178 and the business thereof, including all books, electrotype
plates, charts, medicines, medical appliances, papers, cor
respondence, office furniture, moneys due from agents,
good- will, etc., used in and belonging to the said The
Femina Company; and each of said parties having set
tled, satisfied and adjusted all claims and demands upon
the other;

Now THEREFORE, in consideration of the premises, each
of the said parties does hereby for himself and his legal
representatives release and absolutely and forever dis
charge the other of and from all claims and demands,
actions and causes of actions of every name and nature,
so that neither of them shall have any claim on the other,

179 directly or indirectly on any contract or supposed liability
or thing heretofore undertaken, done, or omitted to be
done from the beginning of the world to this day.

In witness whereof, the said parties have hereunto
set their hands in duplicate this 21st day of October, 1893.

JOHN A. MILLER
N. J. STONE.
In the presence of:
W. A. METSON
F. W. VAN REYNEGOM."

[Endorsed:] " Mutual Release between John A. Miller
and N. J. Stone."

1 80 Witness continuing : I say there never was any
partnership between us. There never was any
agreement or anything submitted in writing.
That term was used, I suppose, as a legal term
in dissolving and winding up the matter. I paid
a certain amount of money and he paid a certain
amount of money.

(Another paper shown witness.)
WITNESS : That paper was also executed by
me.

181 (The paper was offered and read in evidence
and is in the words and figures following, to wit:)

l< THIS INDENTURE, made this 21st day of October, A.
D. 1893, by and between N. J. Stone, of the City and
County of San Francisco, State of California, party of the
first part, and J. A. Miller, of the same place, party of
the second part,

WITNESSETH: That for and in consideration of the sum
of $10 lawful money of the United States to him in hand
paid, the receipt whereof is hereby acknowledged, the
party of the first part does hereby sell, assign, transfer
and set over unto the party of the second part all of his

182 right, title and interest in and to all of the partnership
property owned or controlled by the partnership heretofore
existing between the parties hereto, under the firm name
and style of the Femina Company, including all books,
electrotypes, plates, charts, medicines, medical appli
ances, papers, correspondence and office furniture, money

due from agents, and the good-will of the business here
tofore carried on by said Femina Company, with all the
appurtenances thereto. It being understood and agreed
between the parties hereto that the said party of the
second part accepts said property, and agrees to pay and
discharge all debts, claims of any kind, nature or char
acter now existing against said Femina Company, as
x°3 shown by the statement annexed hereto.

In witness whereof, the said parties have hereunto set
their hands and affixed their seals this 21st day October,

1893.

Executed in duplicate,

N. J. STONE
JOHN A. MILLER.
In the presence of:
W. A. METSON.
F. W. VAN REYNEGOM.

The following is a list of all the bills against the
Femina Company of which N. J. Stone, the party of the

184 first part, has any knowledge, and which are referred to
in theBill of Sale to which this is attached.

Payot, Upham & Co $ 2.01

Whitall, Tatum & Co 93.41

Whitall, Tatum & Co 199.71

Carrick, Williams & Wright 3.00

Payot, Upham & Co 75

Payot, Upham & Co 12.25

F.G.Norman. . .-. . 2.90

$305.03

Together with bills for cartage, rent of office, amount
unknown to the party of the first part."

-o- [Endorsed:] "Agreement between Nathan J. Stone
5 and John A. Miller."

Witness continuing : I must have been in
business with Miller as long as two or three
months, and it might have been six months. I
do not think it began as early as the month of
January, 1893 ; I am quite sure it did not. That
would be my- impression. The business of the
Femina Company was out on Valencia Street, and
in my opinion we were there three or four months.
186 I left there finally when those papers were signed.
I was there only off and on for two or three weeks
before those papers were signed ; I was there
only occasionally. My name was on the door
there as manager all the time we were there. I
may have been there a week or more before my
name appeared on the door as manager ; I was
not there a month or two as manager before that,
and that impression is very firmly fixed on my

187 mind. The last time I saw Miller before going
to the office of the Femina Company to become
manager of that business, was at his house. The
Femina Company was engaged in the publication
of a literary work ; and the History Company
was also engaged in the publication of literary
works. I never took Miller to any other concern
to have his book published, nor did I ever take
him to any other publishing house ; I never took

him to the office of the Pacific Publishing Com-

188

pany. That Company was selling subscription

books, and I think was composed of A. S. Latham
and Mr. Hebert. The partnership papers are so
drawn. I was in the habit of going to the office
of that Company occasionally. I never took Dr.
Miller to Mr. Hebert at the office of the Pacific
Publishing Company while I was in the employ
ment of the History Company. I never saw
Hebert and Miller together. I never in my life
1 80 sP°ke to Miller about Hebert and Latham. In
these papers which have been read, there is some
reference to medicine and medical appliances ;
they were medicines put up by Dr. Miller, and I
was selling them in connection with the publica
tion, with the book. When the arrangement was
made between Miller and me, I don't know that
there was any definite arrangement as to the time
which it was to last. We never made any ar-

190 rangement ; we never completed any arrange
ment ; we never entered into any partnership ;
never drew any papers ; never had any under
standing.

Q. In this particular case you dissolved a
partnership that never existed ?

A. That was the term used. The under
standing between Miller and me was that we
were to divide the profits of the business between
us, and we were to share the losses between us.
I had had some experience in business. I say,
no arrangement was ever completed between
Miller and myself with regard to profits or
losses, or any document drawn in any way, shape
or manner.

Q. You mean to say you put yourself in the
position on the 21st of October, 1893. of having
executed a solemn document declaring a partner
ship was dissolved, which you say never existed ?
102 A. That is the term which was used. I say
we never had made any agreement, or never had
submitted anything to writing. Those things
were not fixed between us. There wasn't any
arrangement. I did not draw those papers. I
signed them, as I supposed, necessary papers in
order to protect me hereafter ; to wind up the
proposition. I had bought some merchandise
that wasn't paid for, and my name was connected

193 with the enterprise. I thought by signing these
I would not become liable for anything because it
simply stated Dr. Miller was to pay the debts.
That was put in the document that was drawn
between us, and considered best to be drawn and
signed.

Q. The liability you wanted to be released
from was future liability in the partnership ?

A. No, sir; it was to wind up. I wanted to

be released from any liability that might come
104.

up in the future. The last time I devoted to

that business was a few weeks before that paper
was signed.

Q. Up to that time you had been quite
actively engaged ?

A. Well, the books will show. He kept
books and they would show about the time. As
an employee of the History Company I had charge
and was general manager, and had charge of it to
IQC a very full extent until 1889; after that, my
duties were limited, that is, I was circumscribed
somewhat in them. I did not say that defendant
had done everything required to be done by him
under the agreement. Outside of the payment of
my salary, since May or June, 1892, Mr. Ban
croft had not done everything which he agreed
to do under this agreement. He circumscribed
my duties. The scope of my duties are not as

196 large as it agreed they should be, and they are
not as large as they were. But I don't remem
ber anything else. I will not say there was not.
I don't remember ; I cannot state anything else
to the jury now. This salary of $350 per month
which was paid me by the History Company for
a period of seven years was paid me by the treas
urer of the company. I knew it was being^
charged on the books of the History Company to
the salary account. It was not charged to defen-
dant, and his name was not connected with it. I
was quite familiar with every detail of the busi
ness. The treasurer charged my salary to the
salary account. I was quite familiar with all
the details of the business and knew my salary
was being charged up and carried as a salary ac
count. It was one of the expenses that were
deducted before defendant or I participated in
any profits. Subsequent to the 1st of September,.
1892, I went to the office of the History Com
pany early every day. I was not absent unless
detained by sickness. I was there most of the
time each day. I went there about eight o'clock
in the morning. Subsequent to the 1st of
October, 1892, I averaged several hours a day
there. I did not get there at eight o'clock dur
ing the month of October every day ; except
wfren I was down at the farm I was there at

199 eight o'clock. When I was at the farm I couldn't
get there until nine o'clock. I don't know
whether I was at the farm during October or
not ; if I was not at the farm I almost invariably
arrived at the office at eight o'clock or there
abouts and remained until evening. I remained
in the evening until about half-past four or five
o'clock, somewhere along there. During the
month of October, 1892, I spent six or seven

hours a day in the office, or more than that. I

200

did not keep any record of it. During the

month of November I stayed about the same
time. Not so much during the month of De
cember. During the month of November
I was there sitting still most of the time.
The perambulations of my desk began in July.
It wasn't moved but once while I was there.
That was when defendant pushed it. They
took advantage of my absence to move it. De-
2OI fendant pushed the desk in July, but I could
not tell the date. I continued to go there every
day after that and discharge my duties to the
best of my ability. My desk was taken upstairs
towards the latter part of December, before it
was placed in the position where I could not
work, and was in a draught. It was taken up,
stairs and brought back and put in that place.
The duties I performed in September, October

2O2 and November were sitting around waiting. It
was rather tedious, and not as easy as managing
the business ; it was very little work. I would
have been willing to have gone there at eight ,
o'clock in the morning and stayed until five o'clock
at night if my salary had been paid, but I would
rather have managed the business. The reason
I left was not because my salary was not paid.
My desk was put there, my chair was taken
away, and ink was poured over my desk, and I
^ was subjected to every indignity that it was pos
sible for one man to inflict upon another. I con
sidered it wasn't in duty bound to my family and
myself to stay there in that draught and get a
cold, and I so informed Mr. Dorland that I
couldn't stay there unless he changed the desk.
I couldn't sit on the desk. At that time my
desk was out near the side door at the head of
the stairs. The rollers were not put back on the
204 desk, they are not put back to this day to my
knowledge. I could have moved the desk with
extreme difficulty if I had seen fit, but there was
no place to move it unless I got up in front, and
Mr. Dorland forbade my going there. Mr. Dor-
land is dead. I was told by Morrison I had no
right there. This was in July, 1892, but not
withstanding that I continued to go there and
discharge my duties long after that. I did not

205 act upon that suggestion made to me by Morri
son. With the exception of that statement made
to me by Morrison, I don't remember that any
living witness told me that any obstacle would be
thrown in my way there.

RE-DIRECT EXAMINATION.

I found the obstacles. They were sufficient to
prevent me from doing the work I had been doing.
In relation to the business with Miller, I was
simply engaged in negotiating about the business,
was about to enter under a contract, and during
the negotiations I had purchased some things and
became liable for them under the expectation of
-making a contract with him. I never did com
plete any contract with him, and at a certain
stage of the negotiations, I concluded not to enter
into the business or any engagement, arid having
reached that conclusion I signed some papers, the
drawing of which I entrusted to my attorneys
and the attorney for Miller, and the papers that
are introduced here are what I was requested to
sign by my attorney and others, and that is the
reason I signed it, trusting in their judgment to
protect me from all liability in my negotiations.
The papers were made by my counsel and signed
them at the request of my counsel in the presence
of both my counsel and the counsel for Miller.

2o8 Question by plaintiff's counsel: State whether
you relied upon your own judgment, or the judg
ment of your counsel in signing the document
containing the words about the partnership?

This question was objected to by defendant on
the ground that it was immaterial.

The objection was overruled by the Court, to
which ruling defendant excepted.
Exception No. 17.

A. I relied entirely upon the judgment and
advice of my counsel. I understand the differ
ence between an ostensible partnership and one
in fact.

Question by plaintiff's counsel : State the
reasons why you signed those papers in full ?

A. I signed that paper because my attorneys
requested me to do so. I did not read either of
them before I signed them.

Witness continuing : I employed counsel to
2io bring those two suits against the History Com
pany, the complaints in which have been offered
in evidence. They advised me to bring the suits
against that company.

Question by plaintiff's counsel : State whether
they afterwards advised you that was a mistake ?

This question was objected to by defendant on
the ground that the suit is still pending against
the History Company, as they have never been

2ii dismissed. The presumption is he intends to
prosecute it. The witness cannot testify to in
structions given to him by his counsel. The ob
jection was overruled by the Court, to which
ruling defendant excepted.
Exception No. 18.

A. Yes.

Question by plaintiff 's counsel : Why did
you bring this suit, knowing that you had com
menced two suits against the History Company

25 Jt 2$

for a portion of the money involved in this ?

This question was objected to by defendant on
the ground that it was irrelevant and immaterial.

The objection was overruled by the Court, to
which ruling defendant excepted.

Exception No. 19.

A. The counsel that brought these suits
against the History Company for me, afterwards
advised me that these suits were against the
2I3 wrong party, and then commenced this suit for
me, and I followed the advice of my counsel in
the matter as to who was liable, and relied upon
that.

Witness continuing : I performed the services
which I did perform for the History Company in
pursuance of my agreement with the defendant.
I understood by the agreement that the business
was to be conducted as the History Company and

314 that I was to perform these services for defendant
under authority from that Company. All I did
was according to my judgment under and in pur
suance of this contract. I have never made any
contract or agreement with the History Company
in any shape or form. I was elected Vice-Presi
dent of that company. I understood I was to
have the management of that company under
this agreement.

Q. And in order to perform your services for
and in the name of the History Company, under
this agreement, how could you get any authority
to do it except by the by-laws? Did you ever
have any ?

A. Not any.

(The following by-laws of the History Com
pany were then offered and read in evidence by
plaintiff:)

" ARTICLE 7.

PRESIDENT.

Section 1. The President shall preside at all meetings
of the Board of Directors and stockholders. He shall
sign all certificates of stock, and all contracts and other
instruments in writing, which have first been approved
by the Board of Directors. He shall call the Directors
together whenever he deems it necessary. He shall have,
subject to the advice and control of the Directors, the
general superintendence of the affairs of the Company,
and he shall perform such other duties as may be required
by the Board of Directors.

217 ARTICLE 8.

VICE-PRESIDENT.

Section 1. In the absence of the President, the Vice-
President shall perform his duties, and he shall perform
such other duties as may be required by the Board of
Directors."

Defendant has been President of the History
Company from the date of its incorporation up to
the present time, unless he has recently resigned.
When these by-laws were adopted, N". J. Stone,
O. A. Stone, H. H. Bancroft, M. G. Bancroft
and Kate Bancroft were the stockholders. O.
A. Stone was my wife, and M. G. Bancroft and
Kate Bancroft were the wife and daughter, re
spectively, of defendant. There was no stock
issued at the time the by-laws were adopted ; it
was issued shortly after. I was to have ten per
cent of the stock. The defendant owned the
whole of it at the time he agreed to convey ten
per cent to me. There were 10,000 shares in the
2Io company of the par value of $50 each, and I had
ten per cent of that. My wife had ten shares
which were given her to qualify her to act as a
director. Mrs. and Miss Bancroft had ten shares
each, also given to them to qualify them to act as
directors. I learned this from the defendant.
Defendant and I at that time directed the affairs
of the company. The by-laws providing for a
salary of $350 per month for the salary of the

220 Vice-President was repealed, I think, in June,
1889. I received $350 per month salary during
May, June and July, 1886, before the Articles of
Incorporation were drawn.

Q. Who paid you that money ?

A. The bank account was opened for the
History Company by H. H. Bancroft, with the
Tallant Banking Company. I obtained the
money by a ckeck from defendant. Nobody else

was authorized to sign the check until after the
221

incorporation. When we drew money from the

bank, defendant signed the checks up to the time
of the incorporation.

Q. After the incorporation, did you get your
$350 ; how did you get that money ?

A. The checks were drawn by the History
Company, by H. H. Bancroft, President ; or by
the History Company, N. J. Stone, Vice-Presi
dent, and paid by the Treasurer. That was up
222 ^0 the time of the repeal of the by-law allowing
the Vice-President $350 a month. I received
salary after the repeal of the by-law allowing the
Vice-President $350 per month just the same as
before ; it was paid by the Treasurer. There was
never any other resolution or action that I am
aware, fixing the salary of the Vice-President by
the Board of Directors.

Q. Then the fact is, from the time of the re-

223 Peal °f that by-law, you received your money, the
same amount, and by the same means, up to the
time when they refused to pay it ?

A. To June 30th, 1892.

Q. Do you know whether the Board of Direc
tors and Mr. Bancroft knew how much, and how
you were receiving this money ?

A. Yes, sir.

THE COURT : You say the salary check was

drawn either by you or by defendant ?

224

A. No, sir ; I said all checks were drawn,

that all checks of that department after the incor
poration, were signed by me, nearly all the checks
for the Company ; occasionally Mr. Bancroft
would sign one.

Q. They were signed either by you or by Mr.
Bancroft ?

A. Yes, sir.

Mr. REDDY : Q. The accounts were kept, and
22 c they would show how much you were receiving,
and the checks and stubs would show how much
money you received from the bank ?

A. Yes, sir. Defendant and the Board of
Directors knew each and every one of those trans
actions, because we had yearly statements show
ing the entire transactions of the business, just
every dollar that was paid out and who it was
paid to, and every dollar that was received. De-

226 fendant and the Board of Directors would know
how the money was drawn out, because the by
laws provided for it, and the money was drawn
out strictly in accordance with those by-laws.
.The money was drawn according to the original
by-laws ; when we drew it from the bank, all
checks were signed in the same way, up to the
end of June, 1892. At that time this notice was
served upon the bank that I was not authorized to
draw. I was the possessor of the stock. I was

22 7 the holder of it. Mr. Bancroft issued it to me,
and handed it to me on the 20th of October,
,1886, and I have had it in my possession ever
since. It entitled me to receive, and I did re
ceive, fifteen per cent.

v»'Q- Why did you vote to take your name off
the letter-heads, if it was disagreeable to you ?

This question was objected to by defendant on
the ground .that it was irrelevant and immaterial.

22g The objection was overruled by the Court, to
which ruling defendant excepted.
Exception No. 20.

A. Because there was no use for me to vote
otherwise. I will state further that defendant in
his own handwriting requested that this resolution
should be passed. I discussed these resolutions
wi h defendant, and I told him that I thought it
unwise, and would be an injury to the business,

239 and my prediction proved true, and the names of
the officers were afterwards put back on the paper,
and my name was put back, and at his request. I
told him I would vote for all those resolutions if
he insisted upon them. He insisted ; he wanted
those resolutions passed, and I think I seconded
every one of them and voted for every one. My
name was afterwards replaced by defendant with
out any resolution ; there was a resolution requir
ing it to be replaced a long time afterwards; after
^ they found the names were being used and no
resolution authorizing them ; then a resolution
was passed, and after that resolution was passed
my name was again removed, but the names of
the other officers were not. My name was re
moved a second time when I was deposed. After
all the names had been put back on the letter
heads, a resolution was adopted authorizing them
to be put back ; they were put back before any
resolution was passed, by the request of the Presi
dent. The men in charge were instructed to
print letter-heads with the names on, and my
name was put on by that order, and after that a
resolution was passed. My name was not again
removed until I was deposed in May, 1892, and
after that it was not allowed to appear upon the
papers. After this indignity, and the removal of
my name, I still continued to perform my duties

332 under my agreement. In May, 1889, I informed
defendant and the directors that I would do what
ever defendant directed, and I obeyed his orders
as President whenever they were given to me in
any form. I had a conversation with defendant
at the Lick House three or four months ago. He
said to me that he would state upon his honor
that I had done for the History Company what
he believed no other man could do; that he hadn't
anything against me, and wanted me to take the

233 sale of this book — the Book of the Fair— because
he believed I could do more for it than any other
living man. My name was put upon the door as
manager of the business with Miller, because I
was the party there and had charge of the place,
the only party there. While there I wrote the
letters which have been offered in evidence here.
I am not aware that that interfered in any way
with the performance of my duties towards the
History Company. During the time that I was
deposed and my desk was moved about from place
to place, I was practically not permitted to do any
thing at the History Company. I was always
willing to do it. There were no dividends paid
by the History Company after I was deposed.
Morrison still holds the office of Vice- President,
but there have been no dividends. I said in
reply to counsel on the other side, that defen-

235 dant had performed all the acts on his part under
this agreement, but I did not mean to include in
that the payment of my salary. I was to be
manager of the History business ; that was the
agreement. I afterwards had 1 5 per cent of the
stock of the History Company. The agreement
was I was to manage the matter. Defendant
allowed me to manage the business, except the
restrictions which 1 have mentioned. He pre-

, vented me from managing it by the restrictions
230

which I have mentioned, and in the manner which

I have stated.

Q. Did you ever understand you were dis
charged or dismissed from that service?

~A. I never was.

Q. You never were dismissed?

A. No, sir.

Q. That is, by a formal statement ?

A. No, sir. I had 15 per cent interest in the
337 History Company and expected to be allowed to
manage it the entire term mentioned in the agree
ment ; I expected to have the entire and absolute
management of it. Instead of that, some one
else was put in to manage the business, and to
take charge of my interest as well as the bal
ance.

RE CROSS EXAMINATION.

The two suits which I brought against the

238 History Company were not prosecuted because
my counsel advised me they were brought against
the wrong party. I understand my claim is
against defendant. I do not make or assert any
claim against the History Company under this
contract at the present time, except if it comes
in afterwards ; I don't know what the legal status
would be. I do not now intend to prosecute those
two suits against the History Company unless
my counsel advise me to do so. I do not expect
to collect against two parties for the same ser
vices. I am now suing defendant.

Q. Do you now make and assert any claim
against the History Company under this con
tract ?

A. I understand my claim is against defen
dant.

Q. Then you have no claim against the His
tory Company ?

2 AO A. I have no claim against the History Com
pany. If the History Company serve notice that
they expect my services again, I will go to work
to-morrow morning. I will go to work on the
demand of defendant and the History Company.
I am ready to perform my duties to the History
Company at any time, in the capacity that I was
to perform my contract.

Q. All the services you have rendered under

241 this contract you have rendered for the History
Company, have you not ?

THE COURT : The witness stated that up to the
time of the formation of the corporation he
worked under that contract, and then continued
to work under the contract for the corporation up
to the time of his dismissal in the performance of
his contract to December, 1892.

242 D. R. SESSIONS

was called on behalf of plaintiff, and after being
duly sworn testified as follows :

I reside in San Francisco. I am at work for
- ihe Southern Pacific Railroad Company. I have
known plaintiff seven years. I know where his
apartments were in the History Company's build
ing. I was at work with him most of the time.
I went into the employment of the History Com-

243 pany in February, 1885, and into the employ
ment of the History Company, a corporation, as
soon as it was formed. It was formed shortly
after the fire; I believe in September, 1886. My
work at that time was mostly attending to the
correspondence of the company. I worked with
Mr. Stone, so that I could observe what hours of
labor he passed, and the manner in which he dis
charge'! his duties. I was working there very

244 dose to plaintiff" all the time. My recollection
is that his hours were about seven to six ; begin
ning at seven in the morning. I have always
taken plaintiff to be a man of nervous tempera
ment, one who works with enthusiasm and fervor;
in fact, it was the constant fear of those inter
ested in the business that he would break down,
and I remember telling defendant that plaintiff
should go away to relieve his mind of the busi
ness for a time, and defendant's reply was to the
"^ effect that a man of his temperament could not
be stopped, that they had to do their work in
their own way; this was after I had been with
the company a year or two. It was after the fire
when we were having a good deal of difficulty in
reconstructing the business. I ceased working
for plaintiff in the Spring of 1892; I cannot fix
the date definitely, because I had some unfinished
accounts and business with the company, and I

2 ,£ did not stop going there at a fixed date. I think
I assumed my present employment in June of
1892. I think it was about that time that I
ceased working with plaintiff. I think it was
about that time that lie was deposed as Vice-
President and Morrison elected; it seemed to me
a very good time to go out. I left about that
time. When I spoke about plaintiff's manner of
performing duties, I mean during the entire

«s

period that I was there ; that holds true as a
general proposition.

CROSS-EXAMINATION.

I assumed another employment in June, 1892,
but my connection with the History Company
was not severed at once ; I was there very little
after that time and had very little opportunity to
observe plaintiff after that time.

Defendant moved to strike out the testimony
4 of this witness, on the ground that plaintiff was
paid up to June, 1892, and that his conduct
before that time had nothing to do with his
recovery for services after that time, and that the
testimony was not responsive to any issue raised
by the pleadings.

This motion was denied by the Court, to which
ruling defendant excepted.
Exception No 21.

24.Q

H. B. HAMBLT

was called as a witness^ *t>n behalf of plaintiff, and
after being duly sworn testified as follows:

I reside in Sari Francisco and have resided
there about ten fears. During that time was
employed first by' A. L. Bancroft & Company and
afterwards by the History Company. Went into

250 the employment of the History Company when
it was incorporated in September, 1886, and re
mained until February, 1892. Know the plain
tiff. Remember that he was employed by the
History Company. Was near him and saw him
every business day. Sometimes he would be
there when I reached the office in the momma:;

O '

sometimes he came after I got there. Was quite
familiar with the duties he performed. He per
formed his duties very industriously and assidu-

251 ously.

Question by plaintiff's counsel : "Do you re
member about how many hours a day he attended
in his office ?

This question was objected to by defendant
on the ground that it was irrelevant and imma
terial and incompetent.

The objection was overruled by the Court, to
which ruling defendant excepted.

252 Exception No. 22.

A. He was there on an average of six or
seven hours every day. This was up to Febru
ary 6th, 1892. I was not so familiar with his
work after that. I had been engaged in this
same business from July, 1884, up to the forma
tion of the History Company in the department
of Bancroft's Works, with plaintiff. There was
no change nor slacking up in the energy or dili-

253 gence displayed by plaintiff in the discharge of
his duties that I know of. Once in a while he
would overwork and be a little sick, and would
probably come a little later in the morning, but
nothing to speak of. Sometimes he would work
so hard he would become prostrated. I married
the plaintiff's niece.

DANIEL CRAWFORD

** was called as a witness on behalf of plaintiff, and
after being duly sworn testified as follows:

I am sixte'en years old and reside in San Fran
cisco. Have never been upon the witness stand
before. I worked for the History Company, be
ginning in February, 1892, and ending in Janu
ary, 1893, up to February, a full year. Know
plaintiff and defendant. Saw plaintiff at the office
of the History Company every day during that
time, from 8 o'clock to 5. Saw him there during
the months of July, August, September, October,
November, December and January every day.
Received orders from defendant to take the cast
ers off the desk of plaintiff. I did take two of
them off ; I couldn't take the back casters off, be
cause the drawers would fall out, and the desk
was too heavy, and I could not get at the others.
They were fixed in deeper than the others; they

256 were screwed in and the others were staved in. I
did not make any report to defendant.

CROSS-EXAMINATION.

My duties at the History Company were to
copy letters, and call for and deliver packages.
I suppose defendant was there three or four
different months at different times. I have
seen him. I was there every day from Febru
ary, 1892, to the end of January, 1893, be-

357 ."

ginning my services on the 1st of February, 1892,

and working until the end of January, 1893. I
think I saw plaintiff there every day during that
time. I remember the fact that he was there
every day from eight until five, because I dusted
and did everything like that when I got in the
office. He came in a little while after I did. I
got there at half-past seven, and sometimes at
seven. He arrived generally from eight to half-

358 past eight. He remained sometimes until five
o'clock, and sometimes he left at four o'clock. I
cannot say that there was any time during that
time that he was not there as early as half-past
eight, and that he did not remain up to four
o'clock, because I left at six o'clock, and don't
remember of seeing him any later than eight
o'clock. I got there about half-past seven in the
morning, and remained until six in the evening.

259 Plaintiff was there every day up to that time.
He always got there as early as half-past eight,
and remained as late as four o'clock. Sometimes
he might have come in at nine o'clock, but never
later than nine. He might have gone away at
three o'clock, but very seldom. He never went
away earlier than three o'clock, to my knowledge.
During the entire time that I was there, there
was no time that plaintiff was not at the History
Company at least from nine o'clock in the morn
ing until three o'clock in the afternoon. I don't
remember his going away any earlier. I am pre
pared to say that he was there not later than nine
o'clock and remained until at least three o'clock
^every day during the entire year I was there; he
may have been away if he was sick, but that hap
pened very seldom. During the time I was em
ployed by the History Company, I went out to
see plaintiff and told him I was told to take the
casters off his desk. Of course, I didn't like to do
it until I told him. Defendant told me to take
off the casters. I don't know what time it was;
it was in the night, the time for us to go home,
about half-past five. It was during the latter
part of my service there. I think it was a month
or two before January, 1893; I think in the
month of November, 1892. I think it was in
November, 1892, because there was another boy

262 went to work there, and this boy went to work, I
believe, in June, I think it was June or July that
he went to work there ; he helped me take
the casters off. I couldn't lift the desk myself,
and he helped me to take them off. I think it
was two or three months after he came to work,
because he didn't know defendant; he hadn't seen
him before that time, a couple of days before
that. I could not say whether it was two or three
months after he came there that he helped me to
3 take the casters off; I know it was two or three
or four months ; I know it was some months after.
I am just as positive about my statement that
plaintiff was there at the History Company's
office every day from the 1st of February, 1892,
until the 31st of January, 1893, from nine o'clock
in the morning to as late as three o'clock in the
afternoon, except the times he was sick, as I am
that defendant gave me this direction. I am just

264 as Positive of the one statement as I am of the
other. I am satisfied that I am not mistaken
about either statement. Mr. Stone was at the
office of the History Company on the 31st day of
January, the day I quit. His desk was moved.
He was working there doing different things
around. On the 30th day of January he was do
ing the same thing. Every day I saw him there,
he was busy from nine o'clock in the morning until

265 three o'clock in the afternoon. Different days I
have been out he might have been there ; I no
ticed him being there when I came back. I am
pretty sure that he was always at work from nine
o'clock in the morning to at least three o'clock in
the afternoon, during the entire month of Janu
ary, 1893, and during the entire month of Decem
ber, 1892. He was at work at his desk ; but at
one time he couldn't work at his desk, but he
came there still. 1 did not take much notice of
whether there was any difference in his attendance
during the months of December, 1892, and Janu
ary, 1893, as during the early part of my service
there, I didn't take much notice of it, only the
desk was moved and then his desk was moved
back again. I am pretty sure his attendance was
just as regular during the months of December,
1892, and January, 1893, as it was in February
and March, 1892. It was around January that

267 he could not work at his desk, but he was still
there. The desk was moved at different places,
around from one to another. I would leave it
there in the night, and come in the morning and
it would be moved. That occurred four or five
times I think. One evening I went away and the
next morning when I came I found the top kind
of taken out, the screws kind of taken out, a
couple of screws on the top, and the desk lid had

268 been opened. The chair was taken away and the
letter-basket. The desk was standing near the
washroom where the gas-fixtures come up from
the floor ; it was standing there, and was moved
beyond the other desk. The other desk was
twenty feet long ; it was moved about forty feet
to the side of the other desk. I am pretty sure
plaintiff was there every day ; that is my impres
sion ; I am sure.

269

NYNA HAMBLY

was called as a witness on hehalf of plaintiff, and
after being duly sworn testified as follows :

I reside in San Francisco and am the wife of
Mr. Hambly, who has been called as a witness in
this case. I am the niece of plaintiff. Prior to
my marriage, I was employed by the History
Company. I entered its service on the 18th day
of February, 1890, I think, and remained until
the last day of July, 1892. I was stenographer
and typewriter, and was under the directions of
plaintiff. I was acting as stenographer and type
writer all of that time, except towards the last;
then I had other work to do, but I was still under
plaintiff; I still took his letters and did other
work for him, but other work was assigned me.
During the time I was there I saw plaintiff fre-

271 quently ; he was always there. Ofttimes he was
there when he was sick and should not have been
. there, but he always came down except when he
was not able to come at all. If he was at the
ranch he did not come there until nine, but he
was usually there at eight and before eight, and
often until as late as six ; we left at half-past five,
and he was often there when we left. Some
times we had to stay later, and he was there until
,six. Usually, though, he left when we did, at
' five o'clock, between five and half-past. In May,
1892, I heard a conversation between plaintiff
and defendant. I was very close to them, but I
was running the typewriter, so I only heard it
disconnectedly, but I heard defendant say to
plaintiff he would beggar him and his wife and
children. I heard him say, " I will beggar
you and your wife and your children." Then I
did not hear any more because I did not listen ;

27-2 in fact, I did not listen to him until he came
right up behind me, and Mr. Stone was on the
other side of the desk. I could not see defen
dant ; he was right back of me.

CROSS-EXAMINATION.

I certainly do feel an interest in this case. I was
operating on the typewriter at the time I heard
this conversation. Defendant stood right behind

274 me> and plaintiff stood on the other side of the
counter ; the counter, I should say, was about
two feet wide, and defendant stood right behind
my chair ; he was very near the counter. His
back must have been towards me, and he was
talking to plaintiff who was on the other side of
the counter from me ; I should think plaintiff was
four feet away from me, and defendant about two
or three feet. During all this time I was operat
ing the typewriter, but did not know what I was

27 ^

writing from. 1 may have been writing from

notes, but I was listening. I do not know
whether I was writing some original matter ; I
may have been simply making the typewriter go,
but I don't remember the fact. I cannot tell the
first of the conversation. They were in the pri
vate office, and of course we could not hear any
thing that was going on there. When they
came out, I glanced around at them. Then Mr.
Bancroft walked upstairs with Mr. Dorland, and
then came back. Mr. Stone was there behind
me, and he walked up to the counter there and
spoke to Mr. Stone ; but then I did not want to
turn right around and look at them. He said he
would beggar Stone and his wife and children.
That is the substance of it ; there were other
things said, but I could not hear the words.
Durino- the time he was uttering these words I

O '•--'

was operating the typewriter. I think my hear
ing was acute enough, when I was sitting
by the typewriter and operating it, to hear a
statement made two feet away, because I was
listening to it, and his tone of voice was a great
deal louder than he usually speaks. He never
raises his voice except when he is angry, and he
was angry at that time. I do not know how
loud the tone was, but I heard it. I do not know
whether he uttered those words in the same tone
' of voice as the balance of the conversation. Those
are the only words I heard. I think there was
some preliminary conversation in the office ; there
was some loud talking, but we could not hear it.
I could not say whether there was anything else
said in the outer office ; they were right close to
me when that was said. The substance of what
defendant said was that he would make beggars
of Stone, his wife and children. I do not know
what else he said. I do not know whether he
said he would make beggars of Stone, his wife
and children, if Stone sued him. I did not hear
him say that he would make beggars of Stone,,
his wife and children if Stone sued him. I was
examined as a witness in the case of Morrison vs.
Stone, which was tried in the City and County of
San Francisco. I was asked at that time to tell
what portion of this conversation I heard.

280 Q. Did you not give this answer : ;' I was
writing on the typewriter at the time, so I did
not hear ; I was quite close to them, but on ac
count of the noise of the typewriter, I only heard
what Mr. Bancroft said to Mr. Stone as Mr. Stone
was coming out, and that was to the effect he
would beggar him, make his wife and children
beggars if he sued him." Did you make that
answer at that time ?

A. I could not say ; I do not know whether
I did or not. I presume I did if it is on the
record.

Witness continuing : I do not remember now
whether I heard anything said by defendant about
suing him.

Q. Why did you not, at that time, when that
question was asked you, say you were listening,
and that you were simply operating the type
writer as a subterfuge ?

2g2 A. I was not asked. I said at that time, that
I was close to them, but, on account of the noise
of the typewriter, I only heard what defendant
said. I have not said that the noise of the type
writer did not interfere with my hearing. It did
interfere, so that I only heard the words I have
told you I heard. I don't know whether Stone
was standing still or walking when the statement
was made to him. He had his overcoat on and

283 was standing close to the door, and defendant was
going downstairs, and came back and said that.
I don't know whether defendant made that threat
at that time and said he would carry it into effect
if Stone sued him. It is a good while ago. I
don't remember whether Bancroft said he would
beggar Stone and his wife and children if he sued
him. I may have remembered more at the time
I was a witness a year ago than I do now. I

have not been thinking about it a whole year.

» » •/

284

ELEANOR HAYES

was called as a witness on behalf of plaintiff, and
after being duly sworn testified as- follows :

I live in San Francisco. I am a stenographer
and typewriter. I entered the employment of
the History Company in 1888. I was there
about four years and a half, up to November
2gr 30th, 1892. Know the plaintiff. As well as I
can remember he was in attendance there every
day during that time, with the exception of sick
ness or something of that kind. I cannot recall
when he was not present. I was employed there
as stenographer and typewriter. Am acquainted
with defendant. Saw defendant at Stone's desk.
Saw him several times kick Stone's waste basket
and send it flying' along the aisle, and kick his

286 office chair, and I saw him tumble the things
over on Mr. Stone's desk and upset the ink bot
tle. Stone was not present at the time. Defen
dant put a saw horse on Stone's desk. A few
moments before, I laid a bill on Mr. Stone's desk,
and after Mr. Valentine got through with the
desk, I went up to get a letter and found the ink
dropped all over the papers and bill heads, and the
little receptacle that Mr. Stone had his pens and
rubbers in strewn over the desk. When defen-
dant engaged in kicking the waste basket and
kicking the chair his manner indicated anger •.
he acted spitefully, I thought. I heard the
threat made by defendant to plaintiff. Defendant
said, "Stone, if you sue me, I will beggar your
wife and your children," and he used profanity.
The profanity was muffled, but the rest of it I
should judge he was speaking through his teeth
in anger, in a spiteful, threatful tone. I saw

288 when I came in the office in the morning to my
desk that Mr. Stone's desk was removed several
times to the end of the office, or to different por
tions of the office. I should say the farthest dis
tance that it was removed from the place where
Mr. Stone used to keep it was about twice the
length of this court-room, perhaps three times.
It was removed to the extreme end of the Historv
Company's office. I know that the casters were-

289 removed from his desk. I saw Crawford taking
the casters off one evening and saw the desk
turned upside down and both boys attempting to
remove the casters when I left the office. The
kicking by defendant which I have spoken of
took place between the months of August and
November, 1892. I left there in November, and
it took place just before that. The threats which
I have described I heard in the early part of the
> year. I suppose it was July ; it was just before
° this trouble came. It was the first trouble, or at
least the first I knew anything of or heard of.
When Morrison took hold of Stone, he was in the
private office, and I saw Morrison push him out.
I cannot tell the time, but it was one of those
three months. I do not know whether Bancroft
was there ; he might have been in the private
office, but I did not see him ; I simply saw Mor
rison and Stone. I am not now in the employ -

2 ment of the History Company. I am employed
by Judge Thompson as stenographer and type
writer .

Mr. Morrison said to me that Stone was not
working for the History Company. He said he
had no authority there, that he was simply there
as a spy. He did not say anything further that
I can recall.

CROSS-EXAMINATION.

My deposition was taken in this case some

100

292 time ago at my residence in San Francisco. The
substance of what Bancroft said to Stone was,
"Stone, if you sue me, I will beggar your wife
and children." That was all I could distinctly
understand. Stone said, " You do your best," I
believe. I saw the boys in the act of taking the
casters off the desk. The desk was turned up
side down and the gas was lighted, and they
were taking them off. I don't know whether
they got them off. The desk was turned. It is

2Q2

0 likely the desk was upside down, it might have
been on its side, I cannot recall. It was either
on its side, or it was turned with the casters to
the ceiling. I do not think they could remove
the casters any other way. I was here when
Crawford testified about removing the casters.
When I saw him, the boy was helping him tip it
over. When I saw him it was being tipped. It
was either on its side, or the casters towards the
204 ceiling. As well as I can recall, the desk was on
its side ; it may be that it was turned upside
down ; I don't recall. I have an interest in this
case. If I can help the plaintiff in any way, I am
willinor to do so.

F. C. STAIB,

called as a witness on behalf of plaintiff, and after
being duly sworn testified as follows:

101

295 I am a bookkeeper. I am now employed by
the Will & Finck Company in San Francisco.
Was employed by the History Company from
July, 1886, to February, 1891, and also from the
17th of March to the 16th of June, 1892. Know
both the parties to this action. When I was at
the office of the History Company the plaintiff
was in attendance there every day. He was
there every day and hour. My attendance was
regular except when I went there the second
time. I made an arrangement with Stone and
Morrison that I was to get off every Thursday
afternoon for a half day, but I think I was only
off three or four of those Thursdays. All the
balance of the time I was there. I always saw
plaintiff there when I was there. Heard a con
versation between plaintiff and defendant one day
of an unusual character. They were in the in
side office. I do not know what was going on

207 there. The door opened, and plaintiff and defen
dant came out, and defendant said, " Stone, you
would not do that to me after all I have done for
you;" and then Stone replied that he would see
his attorney. I suppose they were talking about
some law suit, and defendant said, " If you do, I
will make beggars of you all." I don't know as
those are the exact words, but that is the sub
stance of it. That is as I remember it. This
was about the middle of May, 1892.

IO2
298 CROSS-EXAMINATION.

What first drew my attention was Bancroft's
statement, " Stone, you would not do anything
like that after all I have done for you ; " some
thing like that. And then Stone, I think, re
plied, he would see his attorney, or something to
that effect, and Bancroft replied, "If you do I
will make beggars of all of you." That is about
all I can remember that was then said. I was
about forty or fifty feet from Stone and Bancroft
when the conversation took place. Mrs Hambly
was twenty feet from me and Miss Hayes was
twelve feet from Mrs. Hambly. I was back of
the counter and Mrs. Hambly was outside of the
counter, and Stone and Bancroft were outside the
counter, arid Miss Hayes was outside the coun
ter. Mrs. Hambly was at least twelve feet from
Stone and Bancroft, and Miss Hayes was at least
twelve feet further, making twenty-four feet from
them. I am not positive whether both Stone and
Bancroft were outside the counter. They were
coming through the door when he used this lan
guage, and the door was outside the counter.
My best recollection is that all of the parties
were outside the counter when the conversation
took place. As near as I can recollect, I think
Mrs. Hambly and Miss Hayes were present. I
think there were other parties there too. Mrs.

103

joi Hanibly was about twelve feet from Mr. Ban
croft. Bancroft's tone of voice was loud enough
so I could hear him. It was above his ordinary
tone of voice — conversational tone.

W. H. HARTWELL

was called as a witness on behalf of plaintiff, and
after being duly sworn, testified as follows :

I reside in San Francisco. I was with the old
firm of A. L. Bancroft & Company up to the
time of the fire in April, 1886, and was employed
by the History Company from that time until
May 16, 1892. I know both the parties to this
action. During the time I was with the History
Company I was Secretary and Treasurer a por
tion of the time, and Treasurer and Assistant
Secretary the remainder of the time. During the
time I was there, I knew whether Stone was in
-5Q-2 attendance on the business of the company. His
attendance was very regular, except at times
when he was sick or had leave of absence. I
should say he was very diligent. I had an op
portunity of observing the manner in which he
performed his duties and all that, and I should
say he was a man of very prompt and diligent
habits, always on time in the morning, and ex
hibited diligence in his work until it was time for

104

304 him to go home. He attended strictly to his
business while he was there arid o-ot through a

O O

great deal of work, and could keep a good run of
the business, too. I think I was Secretary and
Treasurer until May, 1890, and then Mr. Morri
son was admitted in the business and I resigned

as Secretary, and he was appointed to fill the
place ; then they created the position of Assistant
Secretary, which I filled in conjunction with the
office of Treasurer. While I was Secretary and
3 5 Treasurer, I was supposed to be under the orders
of the Board of Directors. As they were not
there a great deal of the time, or as they could
not be in session all the time, and Mr. Stone was
Manager, I received orders from him. Occa
sionally Mr. Bancroft gave me orders. The reso
lutions were passed in open meeting of the Board
of Directors. Defendant brought out resolutions
at different times which he wanted passed, and
the matter was brought up in open meeting and
passed. I think they were always passed with
out exception. Sometimes there was discussion
before their passage and sometimes there was
not. I should say the business was run in gen
eral as defendant wished it run. I remember
that defendant brought up some resolutions with
reference to the duties of officers and with refer
ence to whose names should appear on the papers
and that sort of thing.

105

307 (Witness refers to the Minute Book of the
History Company.)

The resolutions I referred to are numbered 33.
The date of the meeting was June 5, 1889, but it
was some time before that I saw the resolutions
in the handwriting of defendant. I forget
whether they were mailed to me or whether they
were handed to me personally, but my impression
is they were mailed to me by defendant. The
original of the resolutions was written by defen-

Q \ O i/

dant. I don't know that I could point out any
other resolution which came to me in his hand
writing, or which I knew were directed by him.
Mr. Stone had the combination to the safe all the
time I was there. I know it was changed after-

wards, because Mr. Dorland came down to the
Tallant Banking Company, where I was employed
dt that time, and asked me to change the combi
nation. He asked me about how the combination
309 was to be changed. It was a combination in
which the lock was not opened, but a key was in
serted and turned to a certain point, and then the
combination changed from that point. I told him
of certain papers in the safe which directed a per
son how to change the combination. I also told
him I would go to the office and show him if he
wanted, and he told me he would like to have me
do so. So I went to the office and we set the

io6

310 combination to the original direction and inserted
the key, and I told him how to change the com
bination and left him at that point. I think that
was in the latter part of May, 1892. I should
say Dorland was elected a Director of the His
tory Company about a year before that.

Question by plaintiff's counsel : State, if you
know, if defendant ever countermanded any of
Mr. Stone's orders in the business.

This question was objected to by defendant on
the ground that it was immaterial and irrelevant.

Objection was overruled by the Court, to which
ruling defendant excepted.

Exception No. 23.

A. I know that some time prior to my sever
ing my connection with the company Stone
ordered me to send some money to Colonel Hatch
as an agent, and Mr. Bancroft told me I should
not do it, and 1 referred the matter to Mr. Stone,
312 and he said he would settle the matter, and I left
it there, and the money was sent afterwards. I
do not know that I could state any detail of any
other order made by plaintiff which defendant
countermanded.

CROSS-EXAMINATION.

Q. What was your business between May
and August, 1886?

107

313 A. The fire occurred on April 30th, 1886,
and I saw a notice in the paper next morning
that A. L. Bancroft & Company would be con
ducted on Geary street.

Q. What were you doing between May and
August, 1886?

A. I was trying to explain where I had been
at that time. I continued in their employ for
about a month, and then I went to my home up
in the mountains, and was gone three weeks, and

^ came back and entered their employ again. It
was called the History Company at that time. I
was bookkeeper and cashier, and had the hand
ling of moneys, and was in charge of the pay
ment of salaries. During that time I paid Mr.
Stone's salary. It was charged on the books to
N. J. Stone's salary account, and was deducted
as an expense before any dividends or profits were
declared, and all dividends and profits in which

-5jc Mr. Stone participated subsequent to the incor
poration were paid after a deduction of all the
expenses. The business, as it was carried on
between May and August, 1886, was continued
in the same set of books after that time. There
was no change in the manner of carrying on the
business at all, so that the expenses incurred
between May and August, 1886, including Mr.
Stone's salary, were deducted from the income of

io8

316 the corporation before any profits were declared
or divided. I remember an order having been
given by Mr. Bancroft to suspend the payment of
a dividend at one time when he was absent from
the city. I think he was in San Diego, and he
wrote me a letter saying not to pay any more
dividends until his return, or something to that
effect, and his order was carried out. After that
the Board of Directors met, but nothing was
done about it. There was money on hand at

^ ' that time, to the best of my knowledge, sufficient
to pay a dividend. Some time after Mr. Ban
croft returned, a dividend was declared, but I
don't know whether it was a day or a week or a
month after. Mr. Stone was a director and had
one voice in the meeting. He and Mr. Bancroft
were practically a unit so far as the resolutions
were concerned. I remember one resolution
where Mr. Stone made some dissent. That was

- jg Resolution No. 32, providing for taking the names
of officers off the stationery, but he assented to
it finally, and voted for it, and it was passed
unanimously. I think the resolutions were passed
by a unanimous vote, or nearly so ; there were
only two or three dissenting votes on Mr. Stone's
part, and they were at the last meeting I attended.
Mr. Stone frequently offered resolutions that
were passed in regard to hiring an attorney, or

319 appointing an agent for some field, or for divi
dends, or something of that kind. I think the
resolutions which he offered were invariably
passed, without exception.

JOSE M. TRIGO

was called as a witness on behalf of plaintiff, and
after being duly sworn testified as follows :

I reside in San Francisco, and have resided
^20

there since 1890. I was born in Spain, and have

been in the United States nine or ten years.
Know both the parties to this action. Made the
acquaintance of plaintiff in San Francisco on the
21st day of May, 1890, and met the defendant
the same day at his office in the History Com
pany. I was brought by the History Company
from New York. Mr. Morrison, the Secretary,
employed me in New York. I remained with
221 the company from that time up to the 15th of
January or the 15th of February, 1893 ; I can
not remember now when I sent the letter to de
fendant saying that I should not like to work for
him any more. I do not remember exactly, now,
what time that was ; it was the 15th of February
or the 15th of January, 1893. I have had dif
ferences with defendant. I now have some liti
gation pending against him. One suit is pending

322 in the United States Circuit Court, and two in
the Superior Court of San Francisco. Those
suits relate to business transactions in which I
claim money and dignity from Mr. Bancroft. I
met Mr. Bancroft in Mexico about the 6th or
7th day of November, 1891, and also met Mr.
Morrison there about the 10th of January, 1892.
He was then, according to my knowledge, the
Secretary of the History Company. I saw Mor
rison and Bancroft together very many times
and many times heard conversations between
them about getting rid of Stone, and putting him
out of the business.

Question by plaintiffs counsel : Will you
state the substance of the conversation, or con
versations upon that particular subject ?

This question was objected to by defendant on

the ground that it was irrelevant and immaterial.

Objection overruled by the Court, and the de-

324 fendant excepts.
Exception No. 24.

WITNESS. The substance of all the conversa
tions were the same. There were a great many
of them; it was to put Mr. Stone out of the
way— out of the business of the History Com
pany. This, I think, was about the end of De
cember, 1891. Bancroft was then residing at the
Iturbide Hotel, in the City of Mexico. He had

Ill

325 had some misunderstanding with Stone, of which
I was not informed, but at the dining table, and
everywhere — we were together most of the
time — they were talking of Mr. Stone not being
independent in his business, and not obeying the
instructions given, and that was the tone of the
conversations almost every day. Those were the
principal subjects up to the 10th of June, 1892,
when Mr. Morrison came to the City of Mexico.
Then Morrison and Bancroft talked together
3 about Stone. According to what I heard them
say, the substance of it was that Stone had sold
some stock belonging to the History Company to
some parties, and had virtually made the sale
~to himself, and that the stock had been sold for a
third or fourth of its value. In many conversa-
sations between Morrison and Bancroft, I heard
the former complain about the conduct of Stone,
and I heard Morrison ask Bancroft many times if
he (Bancroft) had anything to do with the sale of
the goods of the History Company, and Bancroft
denied that he had. I knew much about the mat
ter of my own knowledge, and Bancroft told me
that he had instructed every body and all his em
ployees in San Francisco to close the business and
reduce expenses to the last notch. They decided to
sue Stone, Morrison to bring suit on one side and
Bancroft on the other side ; then I would also sue

112

328 Stone in order to put him in a corner, and reduce
him to a nullity. It was decided to sue him in
every way, on all side. The last time I heard
their conversation was on the day of the depar
ture of Mr. Bancroft and his family from the
City of Mexico to San Francisco. That evening,
just when we went to the cars to see them off,
it was the conversation of both Morrison and
Bancroft, to sue Stone as soon as Bancroft should
arrive in San Francisco, and could round up mat
ters so as to do it. That conversation was
simply to sue Stone and get him out of the His
tory Company in every way possible. I was em
ployed by the History Company at that time
when these conversations occurred. I was
traveling for the sale of some school books pub
lished by the History Company, but at the same
time I was taking notes for writing up a book on
the Resources and Probabilities of Mexico.
These conversations began in December, 1891.
The last conversation which I heard between
Morrison and Bancroft in Mexico, took place on
the evening that Bancroft left for the United
States ; I think it was in February, 1892. I
arrived in San Francisco on July 2, 1892.
I knew, while still in Mexico, that Bancroft began
suit against the plaintiff after his return to San
Francisco I also knew that Morrison began suit

331 against him after his return to San Fran
cisco. After he returned to San Francisco,
Bancroft told me I must sue Stone, and
must look for a lawyer who would serve me, and
that he would advance me the money for the suit.
For some reasons I did not want to do it, though
I professed a willingness to bring the suit.

Question by plaintiff's counsel ; Did you get
a lawyer. I ask you if you did in pursuance to
Mr. Bancroft's suggestion, or instruction, get a
33 lawyer to bring that suit ?

This question was objected to by defendant on
the ground that it was irrelevant and immaterial,
and not responsive to any issue presented by the
pleadings.

MR. REDDY, Counsel for Plaintiff : I propose
to go through the whole transaction between Mr.
Bancroft and the witness.

The objection was overruled by the Court, to
,-- which ruling defendant duly excepted.
Exception No. 25.

A. I did eventually consult two lawyers, Mr.
Mitchell and Mr, Eugene Deuprey, of San Fran
cisco.

Q. After the consultation with Mr. Mitchell,
did you report to Mr. Bancroft ?

This question was objected to by defendant, on
the ground that it was irrelevant and immaterial,

334 and not responsive to any issue presented by the
pleadings in the case.

Objection was overruled by the Court, to
which ruling defendant duly excepted.

Exception No. 26.

A. Yes, sir.

Q. What did you report to Mr. Bancroft ?

This question was objected to by defendant, on
the ground that it was irrelevant and immaterial,
and not responsive to any issue presented by the
pleadings in this case.

The objection was overruled by the Court, to
which ruling defendant duly excepted, and there
upon it was understood and agreed between coun
sel and the Court that all of the testimony of
this witness on this subject should be deemed to
be objected to by defendant, the objection over
ruled by the Court, and exception entered in de
fendant's favor.
^ Exception No. 27.

Witness continuing : After I consulted with
Mr. Mitchell, I reported to Mr. Bancroft that,
according to Mr. Mitchell's opinion, I was not
able to sue Mr. Stone for libel, because that of
fense which had been furnished me was of Stone
in the capacity of the company, which was, of
course, private matter, so I had no case. When
I informed Bancroft that I had no case, Mr.

337 T. A. C. Borland was present, and he (Bancroft)
asked Dorland to find a lawyer — one of those
lawyers that would bring the matter in such a
shape as to give Stone a constant headache, and
he suggested Mr. Eugene Deuprey, whom I con
sulted. But Mr. Deuprey said that he could not
undertake the case, and besides, that he never
would undertake a case that would favor,
directly or indirectly, such a bad man as this de
fendant. I reported this to the defendant. After

•*•* that he did not talk about the matter any more,

but he was very cool with me. Mr. Bancroft
made me an offer to pay the expenses of a law
suit that he was originating for me to bring
against Stone. During the time I was in the
employment of the History Company in San
Francisco, I worked at the office from the time
of my arrival up to the 15th of August, 1892,
and I saw Stone around there most all the time.
When I came in or was going out, I remember
most of the time to have seen him there from
the 15th of August up to November 25th, or
something like that. I worked for the History
Company, of course, but in my own home, 538
Haight Street ; in fact, I used to go every day to
the office, and, so far as I can remember, Mr. Stone
was in and around from one place to another, and
giving orders, or something like that. He was

340 going from one side of the office to the other, or
working at his desk. From the 25th of Decem
ber, up to the time I was with the History Com
pany, I was a great part of the time outside the
office, looking after the manufacture of the Book
of Resources, and going also to the library on
Valencia Street. Then I had no occasion to be
in the office much of the time, but I remember
seeing Mr. Stone around there.

Q. Did Mr. Bancroft ever speak to you about

* not printing books or matters of that kind ?

A. I cannot state the words said about that,
as I was interested in the printing of some
books. I remember well they were opposed to
serving the orders that were received with those
books, because he did not want Stone to receive
anything from them. The orders were for the
purchase of books

Question by plaintiff's counsel : State all that

14.2 was sa^ m re^erence to the books, and if any
thing was said concerning Stone?

This question was objected to by defendant, on
the ground it was irrelevant and immaterial, and
not responsive to any of the issues presented by
the pleadings in this case.

The objection was overruled by the Court, to
which ruling defendant duly excepted.

Exception No. 23.

117

343 A. Defendant said that Stone should never
receive the benefit of the book — I mean the ben
efit of the sale of those books, or the filling of
those orders.

Question by plaintiff's Counsel: State whether
anything was said concerning Mr. Stone, other
than what you have stated, after your arrival in
San Francisco, with reference to getting him out
of the business, or anything of that character ?

This question was objected to by defendant on
the ground that it was not responsive to any issue
presented by the pleadings in this action.

The objection was overruled by the Court, to
which ruling defendant duly excepted.

Exception No. 29.

A. Defendant said Stone should not receive
any profits or derive any benefits from the work
that was going on in the History Company, and
so far as I could understand, intended to deprive
345 him of any benefit from the work — to deprive
Stone of any benefit of anything that might be
received by the company. I had a conversation
with defendant concerning a corporation called
the California Book Company.

Question by plaintiff's counsel : What was that
conversation ?

This question was objected to by defendant on
the sf round that it was irrelevant and immaterial,

346 and not responsive to any issue presented by the
pleadings in this action.

Plaintiff's counsel replied that he proposed to
show that there was a conspiracy between the de
fendant and Morrison to transfer certain of the
assets of the History Company to the California
Book Company. Whereupon the Court over
ruled the objection of defendant, to which ruling
defendant duly excepted.

Exception No. 30.

347

Witness continuing: The conversation between

Bancroft and me was that Bancroft, Morrison
and some others of the directors of the History
Company were to form a new corporation called
the California Book Company, which was to take
some of the works of the History Company and
other works, and that the History Company
would be deprived of those works, and Stone
would not receive any benefit from them. There
348 were a great many conversations of this charac
ter. I was afterwards informed by Morrison that
the California Book Company was formed, and I
was also advised by defendant of that fact.

Question by plaintiff's counsel : State whether
you were informed by defendant as to whether
any business of the History Company had been
transferred to the California Book Company ?

349 This question was objected to by defendant on
the ground that it was irrelevant and immaterial,
and is not an issue that can be tried in this case.
The objection was overruled by the Court, to
which ruling defendant duly excepted.
Exception No. 31.

A. I know of my personal knowledge that the
publication of the Book of the Resources and
Probabilities of Mexico was taken away from the
History Company. I am the author of that
book. I wrote it myself.

Question by plaintiff's counsel: Who caused
that book to be written — Resources and Proba
bilities of Mexico ?

MR. McCuTCHEN, counsel for defendant : I
would like to ask counsel on the other side, be
cause I want it on the record here if there is not
a case pending now in the Superior Court of the
City and County of San Francisco wherein Mr.
251 Stone is plaintiff, and wherein Mr. Bancroft and
the History Company are defendants, where that
very question is in issue, and I object to this
question on the ground that it is irrelevant and
immaterial, and not responsive to any issue pre
sented for trial in this case.

MR. REDDY : We propose to show that the His
tory Company paid for the work on that book,
and it belongs to the History Company ; it is part

120

352 of the History Company's property, and it was
afterwards transferred to the California Book
Company by the defendant and others connected
with him.

The objection was overruled by the Court, to
which ruling defendant duly excepted.
Exception No. 32.

A. When I started the original book, it was
to be published by the History Company. The

History Company, through its directors, ordered

353

me to have circulars printed, and the expense of

the publication, so far as I know, had been paid
by the History Company, up to the date of the
formation of the California Book Company. I
furnished the ideas, and the History Company
furnished the money, and the book was written
by me, and prepared for publication, and the sale
of it was transferred to the California Book Com
pany by the orders of the so-called author of the
book, H. H. Bancroft — not the author, but the
so-called author. I cannot state the exact date
when the transfer was made, but it was some
time in October, 1892, or November, 1892.

CROSS-EXAMINATION.

In the conversation that took place in Mexico,
the understanding was that Bancroft was to sue
Stone, and that Morrison was to sue him, and

121

355 that I was to sue him. I was a party to the con
versation, but I was not a party to any agreement
to sue Stone. I was not hired for that purpose.
I said I would sue Stone at that time, but I did
not agree to sue him, and I did not sue him. I
recognize a difference between promising to do a
thing and my agreement to do a thing — a very
great difference. I was going to sue Stone for
libel. I do not know, and did not know at that

time, what he had said about me, of my personal

^ ^6

knowledge, I never knew anything only what Ban
croft and Morrison told me that Stone had said
about me. When I went to see Mr. Mitchell and
Mr. Deuprey, I showed them a memorandum of
what I had been told Stone had said about me ;
that 1 had misappropriated $600, and that my
reckless way of doing business was hard for the
History Company, and that I had misappropri
ated $200 more of the moneys of the History
Company ; those were the matters about which I
went and consulted Mr. Mitchell and Mr. Deu
prey. I had a good deal of feeling towards Stone
at that time, and was disposed to fight him the
first interview I had with him. I was advised
that a good many more things had been said by
Stone about me ; that he had said a great many
uncomplimentary things. I knew that in order
to bring suit against Stone for libel, I had to have

122

358 some writing signed by him ; I was told that that
writing was in the copy books of Stone. I was
ordered to make an investigation to see whether
there was any such writing there ; I did make
the investigation, but did not find the writing.
The investigation was made some time in July,
both before and after I went to Mr. Mitchell, and
I did not find any such letters in the copy books,
as I was told were there. I went to consult Mr.
Mitchell and Mr. Deuprey because 1 was ordered
to do so. I cannot tell whether I wanted to
bring suit against Stone at that time or not, be
cause I did not know the facts of my own knowl
edge ; I did not know exactly what I wanted to
do ; I did not know what the facts were, and was
unable to find the facts, and I did not know what
course to take. I repeated to the counsel that I
consulted, the words told me by Morrison and
Bancroft. I told them what Morrison and Ban-
croft had told me. I took some letters to Mr.
Deuprey, but they were letters which in my
opinion were not good at all, and Morrison and
Bancroft told me that they held the letter which
was a good one. They gave me some of the let
ters, but told me that they held still stronger
ones back. I have not the letters in my posses
sion now. At any rate they are not here. The
letters which I had were ones which could be

123

361 construed in such and such a way, but they did
not contain direct charges. Bancroft said he
had one which would be a big gun for me to com
mence suit ; but I did not show the big gun to
either Mr. Mitchell or Mr. Deuprey.

RE-DIRECT EXAMINATION.

The big gun which Bancroft promised me
did not materialize. I had been told of charges
that had been made by Stone, and when I was
informed they were in letter books written by
him, I was referred to the letter books and was
told to examine them, and that I would find the
charges, but I did not, the letters were not there.
I~examined several thousand. After a full ex
amination of that number of letters, I found
there was no direct charge against me. I was
told by Bancroft that the rascal of a Stone, when
he wrote a letter that was prejudicial to any one,
.761 he copied it in a book that he himself was the
only one that knew where the book was. He
-never showed me that book. I never saw it. I
believe it was the copies of the letters in that
book that were the big guns.

N. J. STONE,

being recalled for further cross-examination, testi
fied as follows :

124

364 I never introduced Dr. Miller to either of the
persons constituting the Pacific Publishing Com
pany. I never met him with any member of the
Pacific Publishing Company. I never had a
conversation with Dr. Miller and Mr. Latham,
who was a member of that company, at Dr. Mil
ler's residence in the city and county of San
Francisco, nor did I ever have such a conversa
tion under any circumstances. I never met Mr.
Latham at the residence of Dr. Miller in San
^ 5 Francisco. I never met Mr. Latham at any
place in San Francisco with Dr. Miller. I never
had any discussion with Latham with reference
to the publication of Dr. Miller's book. I never
consulted with Miiler in the office of the History
Company at any time about publishing his book.
I never had any conversation with Mr. O. H.
Elliott at any time prior to the 1st of January,
1892, in reference to the publication of Dr. Mil-
ler's book. I think Elliott called at my residence
during the year, 1892, but I do not think I met
him at my residence in December of that year.
I never had a word of conversation with him in
relation to the publication of Dr. Miller's book
in the year 1892, either at my residence or at any
other place. I never told him at my residence,
or at any other place, in the year 1892, that I
thought of publishing or taking an interest in the

125

367 publication of Dr. Miller's book. I was perform
ing my duties at the History Company during
the whole of the year 1892. I do not remember
whether in the year 1891 I had a conversation
with Mr. Elliott in the office of the History
Company concerning the business of that Com
pany. I think I wrote him in August, 1891, re
questing him to call on me at the History Company.
I may have done so, I don't remember the date. I
did not at any time or place state to Elliott that I
would advise him not to go to work for the History
Company because that company was going to
pieces. I never made any such statement at any
time or place, nor under any circumstances or
condition. I never said to Mr. Elliott, prior to
the 1st day of January, 1893, that I was going to
publish or take an interest in the publication of
Dr. Miller's book. My desk began to be moved
around from place to place shortly after the 1st of

160 Juty' 1892. At that time the furniture in the
room occupied by the History Company was be
ing moved from one place to another. At that
time there were no improvements going on there;
but some time later there were some shelves be
ing put up. There was not anything being done
when my desk first began to be moved.

Q. You say towards the latter part of your
visits there the desk was put in a place that was

126

370 inconvenient for you, what work was being done
then ?

A. I said yesterday the room was being filled
up with the property of the Bancroft Company.

Q. What was being done at the time you say
your desk was moved ?

A. Nothing, except that the Bancroft busi
ness was being stopped. The company's business
was being carried on there.

Q. The work had stopped ?

A. The work had entirely stopped.

PLAINTIFF RESTS.

DR. J. MILLER

was called as a witness for defendant and, after
being duly sworn, testified as follows :

I am a physician and surgeon, engaged in the
practice of my profession in the City and County
of San Francisco, where I have been engaged in
practice for eighteen years. I have my office and
residence at No. 1137 Geary Street. Have
known plaintiff about sixteen years, and have had
business transactions with him. My first busi
ness with him was in June, 1892. I had my first
talk with him at the office of the History Com
pany on Market Street. I showed him a book of
which I was the author and solicited his advice

127

373 and interest in the selection of a general agent.
He told me at that time that the History Com
pany was unreliable, and that he would not
recommend me to place my book with it, but that
he had a person in view whom he thought was
the most suitable party I could get. I went to
see him at that time because I knew he was con
nected with the History Company, which was a
publishing house. He told me he would see the
party whom he had in mind, and that on Monday

*' I should call around again. I did call on him
two days afterwards at the same place — the office
of the History Company, at which time he told me
he had seen his party, and that he was favorably
impressed, and asked me when and where I could
make an appointment to meet him. I made an
appointment to meet him the following evening
at my residence. That evening Mr. Stone called
with a gentleman whom he introduced as Mr.

** r Latham. He told me that Mr. Latham was a mem
ber of the Pacific Publishing Company, and that
he was the party he had in view. That evening,
after he had introduced Mr. Latham to me, we
spoke about the merits of the work, and how it
should be handled, and about the price, and the
price I was to get. It was finally decided that
Mr. Latham was to handle my book, and that I
was to manufacture it and sell it to him for sev-

128

376 enty-five cents a copy. I had a conversation with
Mr. Latham that evening in the presence of Mr.
Stone as to the terms on which the Pacific Pub
lishing Company, acting as general agent, would
sell my book. That conversation must have lasted
over an hour. I did not see Mr. Stone after that
for about two weeks. I next saw him at my resi
dence, when I had a conversation with him about
the publication of my book. I told him that I
had notified Mr. Latham to consider my agree-

f * ' ment off, inasmuch as he had occupied two weeks
time to prepare for the sale of my book, and that
I had called on him at his office the day previ
ous and found he had not taken any steps what
ever to find agents, I wrote him the same evening
that I wanted to consider the engagement off.
Mr. Stone told me that perhaps it was just as
well that I had called the proposition off as he ex
pected to be at liberty in a few months, and at
least by the end of October, as the suits he was
involved in would be ended by that time, and he
would be ready to take hold of the work himself
and make a specialty of the book and sell an im
mense amount — some two hundred thousand
copies. I saw him off and on after that time quite
frequently, and had frequent conversations, but
they were general conversations, and the matter
dragged along until the month of December.

129

379 The subject of the conversations which I had
with Stone between the time when he told me he
thought he would be free in October, and the
month of December, were always about the sale
of the book. One evening, in the month of De
cember, 1892, I called upon Mr. Stone — it was
the 12th of December — and I told him that I had
a new thought, and it was this : That I contem
plated revising my first edition and making a sec
ond edition, to change the name of the first edi
tion to that of " Femina," and that I would cut
out the prescriptions that were in the first edition,
and instead thereof I would insert specific terms
designating certain remedies for the cure of cer
tain diseases peculiar to women, and it occurred
to me as he sold the book, he might, at the same
time, establish a sale for and sell the remedies.
Mr. Stone thought very favorably of that propo
sition, and I told him that I thought a scheme of
that kind was feasible, and that I would be will
ing to go into a partnership with him, manufac
ture the book with him, and also the remedies,
and divide the profits and share the expenses.
As I said, that was in December, 1892. He said
he would see me again in a few days. The next
morning after this conversation had taken place,
he called at my house and told me that the prop
osition had grown upon him all night, and that he

1 3o

382 was satisfied it was a big thing, and that there
was a fortune in it for both of us, and that I
should lose no time in perfecting all necessary
arrangements so that he might take hold of the
proposition. The matter rested there about three
days, and after that he called on me again and
said the more he thought of the proposition the
more he was convinced that there was a good
deal of money to be made, and that I should lose
no time in perfecting the arrangements. I said

3 3 that I had been thinking over the matter, and it
required a great deal of work and considerable
capital to go in the business and we had better
enter into a written agreement. He said it was
impossible for him to do that inasmuch as he was
mixed up with litigation, but he gave me his hand
and word of honor that I should go along as an
equal partner and pay that which was necessary,
and whenever we got started in the business he

184 would reimburse me for his part of the outlay,
and upon that I continued to work out the prop
osition.

Q. Was that statement of his to you, when
he shook hands with you and said from that time
you were partners, made in the month of Decem
ber, 1892 ? Was that in the month of December,
1892?

385 A. Yes, sir. I saw Mr. Stone every two or
three days after that and had conversations with
him. The subjects of those conversations were
our business — the business in which we were both
engaged, and in which we were partners. From
time to time I acquainted him with what I was
doing, and we continued in this business until the
month of October, 1893. It was partly trans
acted at No. 1137 Geary Street and partly at

1018 Valencia Street. We transacted the busi-

•*86

ness on Valencia Street from June, 1893. In

October, 1893, there was a disagreement, and the
result was that I was forced into a dissolution of
the partnership — the partnership existing between
me and Mr. Stone. I executed some papers at
that time.

(Witness is shown defendant's Exhibit No. 3.)

I saw Mr. Stone sign that paper. He read it,

looked it over very carefully before he signed it.

,37 I also saw him sign defendant's exhibit No. 4.

He looked that over very carefully. We had

letter-heads in that business.

One of the letter-heads, which reads as follows,
"THE FEMINA COMPANY,
1018 Valencia Street.
N. J. STONE, Manager,

SAN FRANCISCO, CAL., 189 —

was offered in evidence and marked " Defendant's
Exhibit No. 6."

132

388 I know those letter-heads were used by Mr.
Stone.

CROSS-EXAMINATION.

The conversation with Stone at the office of the
History Company was in June, 1892. My visit
to him was for the purpose of having some advice
as to procuring a general agent. My book was
already published and in my possession. I wanted

Stone to assist me in placing the book on sale
389

with a general agent. I had known Stone for

about fourteen years before that time. I have
been in San Francisco about eighteen years, and
have lived there since 1864, with the exception
of two years tn Europe. I had not inquired for
anybody else up to that time in whose hands I
could place my book for sale. I first consulted
Mr. Stone. He told me that the History Com
pany was unreliable, and he would not advise me
390 to place the book with it, but that he had a party
in view that he considered to be exactly suitable
for handling my book successfully. No one else
was present at this conversation. That was be
tween Stone and me in the History Company's
office, and it was about eleven o'clock in the
morning. I next saw him two days after that,
and he then informed me that he had been
speaking to the person that he had in mind at the

133

time of the former conversation with me, and
wanted to make an appointment between that
person and me. The appointment was made to
meet at my residence. No one was present when
Stone and Latham called except me. Dr. Lat
ham is dead. He died about three or four months
after that time. Latham was not to handle any
of my medicines with the book, he was simply
to handle the book. It is not a fact that my
medicines poisoned Mr. Stone's boy. I called
to attend his boy at one time, whom I found
suffering from belladonna poison, which he ob
tained in the office of the Femina Company, of
which Mr. Stone was manager, and of which he
had complete charge. I do not know that it was
out of a bottle of some of iny prepared medicines
that he obtained the poison. I was not there
when he took it, and do not know. Mr. Stone
did not inform me that the boy received the
poison out of the office. I attended the boy pro
fessionally, and afterwards sent a bill to his father
for five hundred dollars, which he did not pay.
He refused to pay it, and it has not been paid.
I was in attendance on the boy on that occasion
about five hours, and it was worth one hundred
dollars an hour. My relations to Stone did not
become strained after that ; we were friendly af
ter that. My feelings were just the same after

134

394 he had refused me one hundred dollars an hour
for attending upon his boy as they were be
fore. He and his wife thanked me, and seemed
more grateful than they ever were in their lives.
That was after the boy was saved from poison,
but the bill for it was not rendered until after the
dissolution of the partnership. My feeling to
ward Stone was not the same after the bill was
presented and refused as they had been for weeks
and months before. My feelings changed consid
erably, and my feelings towards him have not im
proved since that time, They have not grown
worse daily. I have dismissed him from my
mind, and have dismissed the matter from my
mind. I presented the bill but took no further
steps to collect it. I did not say that Stone told
me that I should perfect arrangements as soon as
I could as he might enter the business : I said
that he said, he would enter the business. He
did decline to enter into a written agreement with
me; no written agreement was ever entered into.
I have stated the substance of the conversations
right along as 1 remember them, and have given
the full substance of all that transpired between
us. After he had declined to enter into a writ
ten agreement with me, he gave me his hand and
word of honor, and said that from that time on
we would go forward as partners in business.

135

397 There was no one present at that time except
Stone and myself. This conversation occurred in
the month of December, in the forenoon, at my
office. I saw him after that every two or three
days, at my office or at his house. There was not,
at that time, any other place for carrying on our
business except at my office. In March another
place was rented, but we did not move into it un
til June. Mr. Stone was acting in this business
from December until June. I deputed him to do

a good many things, and he returned the report
to me. The first thing he did was to get a post-
office order for twenty -five dollars. That post-
office order was issued for a trade-mark in our
business.

Q. Did Mr. Stone do anything in the way of
publishing your book between December and June
following ?

A. Yes, sir.

300 During that tinie Mr. Stone got out the second
edition. The first edition I got out myself and
had it printed in Oakland. The second edition
was printed in San Francisco ; the printing and
binding was done by the Hicks-Judd Company,
and the contract with them was made by Mr.
Stone. I do not know when he made the con
tract, I did not have anything to do with it, nor
with paying the bill. Mr. Stone was supposed

136

400 to have paid it, he said he paid it, and
I believe that he did. I afterwards refunded
him the money. The first edition of the
book I had had printed before talking with
Mr. Stone. The second edition was gotten
up later. Must have been gotten out in May or
June, or it may have been a little later ; specimen
copies were certainly out in June. That was not
all Mr. Stone did during the months inter
vening between July, 1892, and April, 1893. He
advised with me continually ; we met as a rule in
the afternoon for consultation. The History
Company had nothing to do with my book, and
it never engaged in the publication of it; nor in
any other matter that I had for publication. As
nearly as I can state the conversation in which
Stone stated to me that the History Com
pany was unreliable, I requested him, if he could,
to assist me to place the book with a general

402 agent who would handle it to the best advantage,
and he volunteered the information that the His
tory Company was unreliable, and he would not
recommend me to give it the book, but that he
had a person in view whom he could recommend.
That was all of the conversation. I remember
that he used the words " the History Company
is unreliable " I do not remember all of the other
words used in the conversation, but remember

137

403 their import. I cannot remember each and every
word used in the conversation.

Q. Can you testify to any exact words used
by him, except the History Company, and that it
was unreliable ?

A. That is the key-note. I remember that.

Q. You remember those words exactly, but
the other words, as I understand you, you would
not undertake to repeat ?

A No, sir. At the time defendant's exhibits
3 and 4 were executed, I remember I observed
and noted closely whether Mr. Stone was reading
the documents. I did not observe that he was
reading them carefully, but observed that he
looked over the documents with care as though
he was reading them. This took place in the
office of Judge Van Reynegom. There was no
one else there when he looked over the papers.
One of the papers was prepared by Judge Van
405 Reynegom, and the other by Mr. Metson.
I was not there before Mr. Stone and Mr. Metson
came. Mr. Metson came later. Mr. Stone had
both of these papers off and on for a week. He
scanned these papers very carefully, I observed
that. A

Q. Why^Klid you observe so carefully that
fact ? That Stone was reading the papers care
fully, when he had with him his attorneys, or
when he was acting through an attorney ?

406 A. I was studying character; I make a study
of that. It was a matter of following out the
bent of my mind, in examining and watching peo
ple to see what they do and examine character,
and that is what caused me to observe Mr.
Stone's conduct in reference to the papers. Be
tween July and October, 1892, when those papers
were drawn, the business was carried on by Stone
and some employees. I had some trouble with
Stone about money matters. That trouble began
' after we were about three months in business
— about two and a half months — it was some
where along about April, and the trouble
increased. The defendants in this case became
acquainted with the private matters which oc
curred between Stone and me because a third
party was about to associate with us in the busi
ness, and that party was intimately acquainted
with the differences between Stone and me, and

408 he seems to be a friend of Mr. Bancroft, and
that is how I was dragged into this affair, I
first disclosed to the people connected with the
defense of this action the facts I have testified
to, about three weeks ago. They called upon me
for a letter book, and told me why they wanted
it, and I gave it to them, and gava them all the
papers they wanted in reference to that business,
that was about three weeks ago.

409 RE-DIRECT EXAMINATION.

The third party who was to have an interest in
this business was Mr. Elliott. The bill for five
hundred dollars for services rendered to Mr.
Stone's child was given to Stone before the disso
lution papers were signed, but he did not recog
nize it, so I did not push it. He did not want to
pay it, and I dropped it. Both he and the mem
bers of his family seemed to be very grateful for

the services which I had rendered in restoring
410

the child to health, and I have never been com
pensated for it to any extent.

O. H. ELLIOTT

was called as a witness for defendant, and after
being duly sworn, testified as follows:

I am a publisher, and reside in San Francisco,
and have resided there off and on for nearly forty
411 years- I know the parties to this action, and
have known Stone twenty -seven years and Ban
croft for thirty years. Have had business rela
tions with both of them. In the month of
August, 1891, I had a conversation with Stone

o '

in the office of the History Company, in the City
and County of San Francisco. No one was
present but ourselves. Bancroft had spoken to
me several times about going to work for the

140

412 History Company, and in July he spoke to me
again about it, and mentioned a salary that he
thought I could earn, at least $500 a month, and
in August Mr. Stone sent for me and offered me
$300 a month, and I told him I was then on the
eve of purchasing a patent bed and go into the
manufacture of the same. He requested and ad
vised me to do so, and stated that the business of
the History Company was going to pieces, that
it amounted to nothing, and that Bancroft was

A T 1.

very unreliable and could not be depended upon.
He advised me not to take employment under the
History Company at that time. He told me
that Bancroft had requested him to send for me;
that he had urged him to engage me for the
Chronicle, a book they were then publishing, en^
titled the Chronicles and Builders. I told him I
had some other scheme on hand, and told him
what it was. He advised me to buy the patent
and to secure all the territory possible, and to
acquire the rights in China and Japan and the
Pacific Islands, and if I built up the business and
got it on a paying basis, he would take an inter
est in it. I think I talked with him about an
hour in reference to that business, and he said he
would like to recommend me a bookkeeper, and he
recommended Mr. Moore, and gave me a letter
of introduction to him, and I appointed Mr.

415 Moore bookkeeper in the business in which I pro
posed to engage. In December, 1892, at Stone's
residence, I had a conversation with him in refer
ence to the publication and sale of a book called
" Femina." He took down the book out of his
library and showed it to me, and went on to state
the contents of the book, and how valuable a
book it was, and it would have a very great sale.
I told him it was not large enough, and he said he
was then in consultation with the doctor for a
new edition, in which they were going to enlarge
it; it would sell anywhere in connection with the
remedies; he could sell it to his brother or any
one he tried, or anywhere. It was a book that
an agent could go anywhere and get an order for.
In this conversation, which took place in August,
1891, Stone told me to be very careful about the
fact that he had advised me not to go to work for
the History Company, and not to say anything to
the old man about it; that is the way he ex
pressed himself. In December, 1892, I had in
terviews with Stone very frequently in relation to
the publication and sale of Femina. He told me
he was going in with a doctor, but did not state
the name of the doctor until February, 1893.
He took me out to Valencia Street, where they
were going to have an office, and showed me the
place and the rooms they were going to occupy,

142

418 and said he would admit me as a partner to the
extent of a third interest in the business. On
the 24th of May, 1893, he borrowed $500 from
me to pay for the paper for the second edition to
the Hicks-Judd Company, and the Hicks-Judd
Company showed me the books that were printed
and turned out on the 19th day of June, 1893.
He borrowed this money from me to pay for the
paper in May, 1893 — the 24th of May — and he
showed me the bill for the paper. The Hicks-
Judd Company showed me their books where
they had received that money from him.

"CROSS-EXAMINATION.

I am now engaged in the publishing business
at 1842 Capp Street.

H. M. MONK

420 was called as a witness for defendant, and after
being duly sworn, testified as follows :

I am an employee of the History Company,
having charge of the subscription department. I
have been in the employment of the company
since the 6th day of August, 1892. From the
6th of August, 1892, until the beginning of 1893,
I spent rny time in the capacity of bookkeeper
for the History Company in the large room now

143

421 occupied by the Bancroft Company as a book
store. I had a desk in that room. From the
6th of August, 1892, to the 1st of February,
1893, Stone apparently spent very little time in
the office of the History Company, I could not
state definitely. Some days he would not be
there but a very little while; it might be for an
hour, it might be for three hours. I think there
were many days between those two dates that he
was not there more than an hour. I don't think

A.2 2

more than half the time between August, 1892,
and February, 1893, he was there during the en
tire business hours during the day, say from nine
o'clock in the morning until four or five in the
afternoon. I do riot think he was there half of
the time during business hours between those
dates. During that time there were improve
ments being made in the room occupied by. the
History Company. Carpenters were employed
in putting up shelves, arranging counters, etc., and
fitting up the place for a book store. That neces
sitated the movement of the furniture that was
in History Company's office. Such desks and
furniture as were movable, were moved around
when the carpenters were at work there; they
were moved as occasion required, just far enough
to get them out of the way. Only two desks in
the office were movable, and they were both

144

424 moved. The desk that I used was not moveable;
it was stationary. There was a counter and
chairs in the room, and general office furniture.
The chairs were moved. There was a safe and
that was not moved until the very last. There
were typewriters there and they were moved.
Desks which had been stationary previous to that
time were moved when occasion required it. As
soon as the carpenters commenced at the Market
Street end of the building and worked southerly,
** our desks were all in the southerly part of the
building and when the carpenters worked up to
where we were, we were all moved. Everybody
was interfered with to a great extent while the
work was going on.

CROSS-EXAMINATION.

I occasionally took notes of the time Mr.
Stone remained in the office. I took notes of his
426 presence there. I think Mr. Bristol, who had
charge of the subscription department at that
time, told me to do so. No one else told me. I
made a record of it. I do not know where the
writing is now. I turned it over to Mr. Bristol,
and he made his minutes in the books every day.
I was in the same room with Stone. We occu
pied the same room; our desks were quite close
to one another. I think Stone was away about

427 half the time. The notes which I spoke of are
here, or rather the notes which I made are not
here. I turned them over to Mr. Bristol, and he
put them down in this book. I made notes from
which I could refresh my memory if I had them
here. I saw the notes which I made this last
week; I just glanced at them casually.

[Book handed witness. Witness identifies
some of the notes as his and some as Bristol's.]

I turned my notes over to Mr. Bristol in the
o *

evening. Mr. Bristol had the book all the time,
and I made notes from time to time; I made
notes on the spot on my desk, and at night
I turned them over to Mr. Bristol, and he
entered them in this book. This is not in my
handwriting. I would turn them over in the
evening, and that is the last I saw of the notes.
Sometimes I read the notes to him and he would
put them down. I could not tell how many times
420 I kept run of the hours that Stone was there. I
cannot approximate; I did not keep the record
the whole of the time from the 6th of August
up to February, 1893. I think I kept it until
about November, but not all the time. Between
August and November I said I thought that Stone
was there half the time. I aimed to keep this
record all of the time between August and No
vember, but I may not have done so regularly. I

146

430 could not tell you how many times I put the time
down, as I have said, I did it from August, or
shortly thereafter, until the end of November. I
aimed to keep the account regularly between those
times; I may have missed some of the days. As
to the number of days I missed, I could not tell
you. I would say, according to my best judg
ment, that I kept a record half of the time be
tween those dates. This is only guess work. I
am not positive about it; I don't think I kept any

A *? T

^ count after November. I did not, at the time I
made that record, expect to be a witness against
Mr. Stone. I kept the record because I was
asked to do it. Mr. Bristol is now in Chicago.
He has been there for some time, and is in the
employ of Mr. Bancroft. At the time I speak of
he was in the employment of the History Com
pany. I did not know at the time I was instruct
ed by Bristol to keep an account of Stone's time,

4 ., 2 that there was any scheme to injure him. I was
never told that. I am trying to tell you what I
know, not what I thought. I did not know at
the time I received this order to keep an account
of the time, that it was a movement to injure
Stone or not. I did not question them as to
what they wanted to do. I did not make any
inquiry one way or the other as to what
use this record was to be put. Of course,

147

433 I don't know what their object was in keep
ing the record, but I presume it was to know
whether Stone was earning his salary or not. I
will state that I was keeping the time of the
other employees as well; that was part of my
duty. It was part of my duty to keep the time
book, but I did not keep as close a record of the
other employees as I did of Mr. Stone. I did
not keep any record of Mr. Stone after Novem
ber, because I do not think he was around the

^ office after that time to any great extent; he may
have come around, but that is my impression ;
after the last of November he was around the
office very little, and it was for that reason I did
not keep any record. I do not know how many
times he was there after November. When I
say I think he was not there to any great extent,
I am simply giving my impression to the best of
my knowledge, but I do not state it positively.

GEORGE EDWARDS

was called as a witness for defendant, and, after
being duly sworn, testified as follows :

I am connected with the History Company,
and have been employed by that company since
1886. I was employed by the History Company
during the entire year of 1892. After July, 1892,

148

436 Mr. Stone's attendance became more and more
irregular ; I cannot definitely fix the exact time,
but I should say that early in 1892 he was there
pretty much all the time, and less and less each
day, and finally he called in for a few minutes, and
at the end of the year I should say his visits
ceased altogether. His visits grew gradually less
— they grew less frequent.

Q. And you think before the end of the year
1892 he had stopped coming there altogether ?

A *2 T

A. Well, he may have called in the office oc-
casonially, once in three or four days after that.
The length of his visits when he did come grew
shorter towards the end of 1892 ; they grew
shorter gradually. He would stay there a little
less time each visit, and towards the end of the
year he ceased altogether to call at the office.

...

CROSS-EXAMINATION.

I have charge of the collection department. I
was in the office most of the time. I did the col
lection by correspondence. I did not collect per
sonally. I was in the office pretty much all the
time daily, except when I went out to get lunch.
I was in the same room with Stone. It was only
a general observation of Stone's attendance. It
grew gradually less and less, but I cannot fix the
date exactly. I should think there were five or

149

439 §ix desks in the room occupied by Stone and me.
In November, 1892, I think pretty much all of
the desks had been moved out. When the shelves
were put up, the desks were moved out, the office
being extended and opened up to the front of the
building. There were two desks in the room
that Mr. Stone and I formerly occupied. I occu
pied one and the cashier the other — no, there
were three desks, one long desk, one joining the
cashier's desk, and back of that my desk. Across
the end of the office was a long counter, inside the
counter were the cashier's desks, two long desks.
At that time, early in 1892, Mr. Hartwell was
the cashier, then Mr. Staib. I think at that
time Mr. Stone's desk also was inside the counter,
and my own was a large desk a little outside the
counter. I do not know what became of Stone's
desk eventually. Everything was moved around
somewhere. Stone's desk remained there, and

44 r after awhile I lost track of it. It was removed
from the office — it disappeared. At the time it
disappeared Mr. Stone was not using it. I should
say it was removed the latter part of 1892, but I
might be mistaken. After Stone's desk was re
moved, Mr. Dorland, the Treasurer of the Ban
croft Company and the Treasurer of the History
Company, and myself and Mr. Monk occupied
desks there. After Stone's desk was removed all

442 of the other desks there were not occupied. I
think after a time some of the desks were not oc
cupied, but* after some of them were removed
those that remained were occupied. I think
about the time Stone's desk was moved, nearly all
the desks were moved out. My own desk was
taken out of the office and another one the same
size, and then I took a smaller desk which I now
occupy. There were three desks which remained
there after Stone's desk was moved out, one was

™ occupied by Mr. Dorland, one by Mr. Petersen,

and one by Miss . There was no desk

there for Stone in the latter part of 1892. Every
thing disappeared from the office. The furniture
of the office was moved — everything taken out
except these desks, they were in actual use. It is
my impression that Stone visited the place after
his desk was removed occasionally, but not every
day. I should say, in a rough way, once a week,

. , or once in two or three weeks.
444

GEORGE H. MORRISON

was called as a witness for defendant, and after
being duly sworn, testified as follows :

I reside in San Francisco, and have resided there
folr five or six years. I am a member of the His
tory Company, and have been for about four or five

445 years- I never, at the office of the History
Company, nor at any other place, in the year
1892, instructed Miss Hayes not to take any dic
tation from Mr. Stone. I never told any steno
grapher employed by the Historjr Company that
he or she should not take a dictation from
Stone. I never told Miss Hayes, at the office of
the History Company, or at any other place, that
Mr. Stone was not working for the company, and
had no right in the office. I never told anybody
employed by the History Company, that Mr.
Stone had been discharged or dismissed. I never
knew that he had been discharged or dismissed.
He never was discharged or dismissed to my
knowledge. I never told Trigo, and never stated
in his presence in the City of Mexico, or at any
other place, that Mr. Stone was going to be put
out of the History Company. I never had any
such thought or knowledge. I told Trio-o that

• ' . ^ o O

A An I had written Stone that I should hold him per
sonally responsible for selling out the Eastern
agency of the History Company without my
knowledge or consent. At that time the Eastern
agency of the History Company had been sold.
That was my understanding of it. I was a stock
holder of the History Company at that time. I
had been informed of it prior to the statement to
Trigo, and told him that I should hold Stone

448 responsible under the law for selling it out. I think
I showed him (Trigo) a letter to that effect which
I wrote to Stone ; that was the only litigation I
ever talked about to Trigo, or in his presence, of
having with Stone, except, perhaps, when Trigo
talked to me about bringing the suit against Stone
for libeling his character. I may have had some
conversation with him about that. At that time
Trigo talked to me about bringing suit against
Stone, he was determined to bring suit against
him for libeling his character, and he was going
to kill Stone, and all that sort of thing. I never
advised him to sue Stone. I was in Court this
morning when Trigo testified that Bancroft and I
advised him to get counsel to sue Stone. I
never gave him any such advice. I never ad
vised anybody to go into a law suit. Trigo told
me he was going to base his suit against Stone
on the letters Stone had written impeaching his
veracity, and his integrity, and his character. I
think I showed Trigo one letter written by Stone
that was addressed to me. I had been finding
some fault with him about the conduct of his busi
ness, if I remember rightly, and I showed him a
letter from Mr. Stone finding fault with him, as
sustaining my own views. He must have ob
tained the information in relation to the remarks
which Stone had made concerning him through

153

45 1 some other person than myself. He did not ob
tain it through me. I did not make any state
ments to Trigo in relation to what Stone had said
of him further than to exhibit to him the letter
which I have mentioned. All other information
which he had in relation to derogatory statements
made concerning him by Stone, he obtained
through some other source than myself. When
Trigo seemed to exhibit so much ill-feeling towards
Stone, he told me that Stone had made state-

^^ ments impeaching his honesty and veracity, and
that he had treated him like a dog, but I advised
him not to have any suit with Stone ; that there
was nothing in it. Mr. Bancroft never instructed
me~to say to any one of the employees of the
History Company that Stone had no right there;
he never instructed, or suggested to me to instruct
any of the employees of the History Company
not to render any assistance or service to

AC -i Stone. Mr. Stone was not a member of the
Board of Directors at the time the misunder
standing between him and me, of which he has
testified took place. It was not a meeting of
stockholders, it was a meeting of the Board of
Directors of the History Company, and there was
no one present besides Mr. Stone who was not a
member of the board. That was a Director's
meeting for the transaction of business of the

454 company. Mr. Stone had not been invited to go
there by the Board of Directors, so far as I knew,
as I think he had no right there. I did not tell
him, in the month of May, 1892, that he had no
right in the History Company's office, nor in
June, 1892, nor did I ever tell him that at any
time. I remember a little episode that took
place one day in the History Company building,
when Stone came into the private office of Mr.
Bancroft. Mr. Bancroft was sitting at his table
in his private office, and I was standing near him
in conversation with him and the door suddenly
opened, and Mr. Stone, very much excited, with
his hand up, entered the door, that is, pushed the
door open, and quite loudly said : " Mr. Bancroft,
I hold you responsible for the movement of my
desk." He spoke in that way, and Mr. Bancroft
looked up quietly, made no reply to him, but
asked me if I would please close the door, and I

456 stepped to the door and closed it, and in closing
it, I pushed Mr. Stone out in order to close it.
There was not a word said at that time, except, as
near as I can remember, what I have just stated.
That was Mr. Bancroft's private office. Mr.
Stone's desk was not in there and never had
been.

CROSS-EXAMINATION.

That was the private room of Mr. Bancroft,

457 President of the History Company, for which the
corporation was paying rent. I speak of them as
private rooms because the general business was
not done there. This occurred some time during
the forenoon, in business hours. I do not know
that Mr. Bancroft occupied any room as his
special private room. I explained that I called
these private rooms in that the general business
was not performed there. He was there as Pres
ident of the company, and held those rooms as
** President of the History Company. He was
there at work. He was at that time President of
the Company, and those rooms were occupied by
him as a member of the company. That was the
place where he transacted his business with out
siders, or with officers of the corporation who
might have business with him. Mr. Stone did
not say to Bancroft that he would hold him re
sponsible for the removal of his desk out of his
4 CQ office. His proposition/ as near as I can repeat,
was : " Mr. Bancroft, I hold you responsible for
the moving of my desk." I do not attempt to
give the exact words, that is the substance of it.
Mr. Bancroft did not make any reply to him.
He asked me if I would please close the door.
Stone was not inside the room at that time. He
held the door in his hand. I closed the door.
Stone was not quite in. He had hold of the

156

460 door. I stepped up and put my hand on the
door, and shoved the door together. He seem
ingly was willing it should be shut, and he went
back with it. That was the end of the transac
tion. If I said in my direct examination that I
pushed Mr. Stone out, it was a slip of the tongue.
I closed the door, and the idea is, he went with
the door. The door shoved in his direction ; it
opened into the office. I cannot say I closed the
door very gently, but I did not do it violently, it
did not require violence to close it. When Stone
went into the room, Mr. Bancroft asksd me to
please close the door, and I have stated to you
what I did, and that was the substance of it. I
never discharged Stone from the History Com
pany, and never knew of his being discharged. I
understood he had some sort of a contract with
Mr. Bancroft, but I knew nothing about his be
ing discharged from the History Company. I

462 knew he was Vice-President, and I knew the
Board failed to re-elect him, and I was elected
Vice-President. I supposed if he had any rights
in the History Company the law would protect
him. I never dismissed him or knew of anybody
else dismissing him. I think it was in May, 1892,
that he was not re-elected Vice-President. I do
not know anything about his being in the employ
of the History Company after that time. I said

463 I never dismissed him nor ever heard of his being
dismissed. This episode that I have just des
cribed occurred after I was elected Vice -Presi
dent, but I cannot fix the date. I should say it-
occurred some months after. A matter of three
or four months. Mr. Stone was in and out of the
building during that time. I did not always know
what he was doing, but he did not seem to be do
ing much. I was Vice-President, and it was my
duty to be looking after the work of the company
and looking after the employees, and I did this.
I knew that Stone was writing some letters, and
I knew he was transacting some business, and I
knew he had some contract with H. H. Bancroft.
I knew he was writing letters and transacting
some business for the corporation. He continued
to transact business in that manner several
months after. He was in and out doing a little;
I do not know exactly how many months. I

45 c think I came back some time in June or July and
Mr. Stone was there then, and he continued there
off and on. Sometimes I would see him there
for an hour or two in the day, sometimes at dif
ferent times in the days, perhaps for a month or
two months, perhaps three months after that
time. I made some inquiry and tried to find out
what he was doing there. I knew he was trans-
actino- business for the corporation. I did not

466 discharge him, because, as I understood it, he had
no direct connection with the History Company,
except through some contract with defendant, and
I felt that whatever rights he had the courts and
he and Mr. Bancroft would settle between them
selves. That was the reason I made no special
inquiries as to what he was doing about there.
After the election on May 20th he continued as
manager. After I was Vice-President he claimed
to be manager. A letter was sent to Mr. Derby

J A«r

signed by him as manager. Mr. Derby sent me
back a letter that he had signed as manager, and
I knew in that way that he was acting or pro
ceeding to act as manager right along during
those months. I never attempted to discharge
him as manager for the reasons I have given you.
After my return from Mexico, I commenced an
action against Mr. Stone. That action was tried
in the Superior Court of the City and County of
468 San Francisco before a jury. I do not think I
ever did, while Mr. Stone was Vice-President of
the company; apply to Bancroft or approach him
for the purpose of getting him to depose Stone
and putting me in his place. I never made any
such application. Something was said about a
change of officers and I think I told Mr. Ban-

croft in a letter that was produced once that I
have forgotten about, and I heard read, that I

469 would be willing to accept the position of Vice-
President, but I never made any application for
the office. I may have intimated to him that I
would be glad to take the position which was
then occupied by Mr. Stone, if it was vacant.

[Witness is shown a letter which he identifies
as being in his handwriting, and the signature of
which he identifies as his. The letter was offered
in evidence by plaintiff, arid was asked the object
of it. Plaintiff's counsel stated the object is to
show that the witness made such an application
as I have described to obtain the position which
was then occupied by Mr. Stone, that he sought
to displace him and to gain the place.]

The letter was objected to by defendant on the
ground that it was irrelevant and immaterial and
not cross-examination.

The objection was overruled by the Court, to
which ruling defendant duly excepted.
471 Exception No. 33.

Whereupon the letter was read in evidence, as
follows:

"HOTEL ITURBIDE, MEXICO. )
MEXICO CITY, February 13, 1892. j

DEAR MK. BANCROFT:

I desire to wish yourself and family
a pleasant and safe passage home, and trust that the
change to our California climate may build Lucy up at
once. Regarding the business here I will do my best to

i6o

472 8eH school books, get cash wherever it is possible, when
time is given, will get the shortest time possible. Will
work C. B. for all it is worth. Will do my best to place
B. W. in colleges and seminaries; will be on the lookout
for information and names of writers and books, etc.,
that can be had without cost for Gyp. Will get notes for
school books, discount them, arrange with good commis
sion house to send us the money as soon as the books are
received; will always sell the best book possible, but in
accordance with your wishes, will have such books made
(in price) as will meet the demand. It is my intention
to get all over the Republic, that is, to such points as we
ought to go to where don't reach, and get back to

473 San Francisco by May 15, '92. For 1 wish, if agreeable
to you, to take a trip to Montana and get back here in
September to see Diaz. From what I have read of the
correspondence between Mexico and the History Com
pany, in S. F., too much ink, paper, time and money is
expended in trifling fault finding, and telling what can
be done, to give confidence in the way business is done;
the haste, too, with which property was disposed of also
makes me tremble for the condition of our wives and
children would find matters in, if we were suddenly taken
to Paradise; so if you will quietly arrange to have Dor-
land and Peterson move upstairs and attend to the work
now attended to by the people there, and thus give the

474 Vice-President a chance to go out and do some good big
work for the company. I will be greatly pleased; he is
a man who knows how the work should be done and
would, no doubt, be able to accomplish a great deal, and
the office work could be done just as well, to say the least,
as it is now, and with Tom at the head I would feel per
fectly safe, knowing that he would be fair and honest,
and would do nothing in haste or wrong, or without con
sulting the interests of all. Mrs. Morrison is a woman
of rare sense, education and tact, she is deeply interested
in all that concerns her husband and children, and can
act for me. She has the most profound respect for your

475 ability, wisdom and fairness, and you will find her just as
valuable a person to consult about all matters in which
I am interested as I would be if personally present.
I will send her a power of attorney to act for me. My
judgment is that it would be wise to keep all the room we
now have, and when you are ready to do so move the
B. C. upstairs and arrange to divide the rent. If you
should come to the conclusion that for any reason you
want to make a change in officers, I would be glad to see
Tom Borland Secretary and Treasurer, and would be
glad to accept V. P.; this, I understand, to be in full ac
cord with your views. In all things I talk to you as
plainly as if I was thinking aloud, for I am with you and

476 yours for life, and all our business must be absolutely
fair, open and just. If you are not wiser than I am at
many points it would indicate that your years of won
derful work had not ripened a mind naturally rich; you
are wiser, anjl I want to derive benefit personally and for
the business from the large experience that has enabled
you to accomplish your work, hence speak to me in the
future as you have in the past, freely.

I have written you these few words as a sort of a good
bye. With kindest regards to your most estimable wife
and children, I am, as ever and always,
Your friend,

GEO. H. MORRISON."

477

RE-DIREOT EXAMINATION. '

[Letter shown witness and identified by him as
written by plaintiff to him under date of Novem
ber 22, 1892, the following portion of which is
offered in evidence:]

" I shall move out of the large room at the end of the
hall, for the reason that the saving in rent is over $75.
The little rooms are not ready for us to move into. We

l62

478 may want the large office, and will certainly want it if

we publish the Encyclopedia. Mr. S has been to see

me about moving the school department down stairs —
It would be better for us to try and rent a little space in
this office, and try to cut down expenses in that way."

I never told Miss Hayes that Mr. Stone was
around the office of the History as a spy. I
never made any statement of that kind to any
body. I do not remember Trigo having any
conversation with me about the time I returned
to San Francisco; he spoke to me before he
parted with me in Mexico, saying he would
bring a suit against Stone, and I advised him it
was a very foolish thing to do; there was nothing
in a law suit.

RE-CROSS EXAMINATION.

I do not know what was in my mind when I
wrote that letter to Mr. Bancroft, which has been
offered in evidence. I said I never talked to an
4§o employee of the company about one of my asso
ciates in the company. I was writing to Mr.
Bancroft as the head and front of the History
Company. He was the President, he owned 70
per cent of the stock of the corporation. He
was the largest stockholder of the History Com
pany. I used the expression he was the head
and front of the History Company, and qualified
the expression by saying he was the President of

481 the company. He was the head of the
corporation, he was the president of it.
When I used the expression the head and
front, I simply wanted to convey the idea that
Mr. Bancroft was President of the company, that
is why I wrote that letter to him. Mr. Bancroft
framed the policy of the company, and it was in
that sense that I used the expression " head and
front ;" that is the best explanation I can give.

He framed the policy of it to a very great extent.
482

H. H. BANCROFT

was called as a witness for defendant, and after
being duly sworn, testified as follows:

I never, in January, 1892, or at any other time,
in the City of Mexico, made any arrangement or
agreement, with Mr. Morrison and Mr. Trigo
that we should bring suits against Stone. I think
483 I was in Europe when the plaintiff first came to
the house of A. L. Bancroft & Coinpany. I
came back in 1868 or 1869. The firm was then
H. H. Bancroft & Company, and was continued
under that name until we moved on Market
Street in 1869, and then it was changed to A. L.
Bancroft & Company, and continued to do busi
ness under that name until 1886, when it was
burned out. When we moved to Market Street,

164

484 Mr. Stone was employed by A. L. Bancroft &
Company. He was there in two or three capaci
ties. He had charge of the wholesale department
at one time, and had charge * of the subscription
business at one time, I cannot remember exactly
the dates, they were in paint of order. I think
it was in 1882 that he began to have anything
to do with the Bancroft's Works Department of
A. L. Bancroft & Company. He had charge of
the sale of those books, and continued to act in

"" 5 that capacity for A. L. Bancroft & Company
until the History Company was formed, and after
that he was manager of the company. The prop
erty referred to in the agreement set forth in the
plaintiff's complaint consisted of outstanding ac
counts for about from $240,000 to $250,000 I think
some seven thousand, and two or three hundred
orders for the Histories, which had been taken at
a cost of from $25 to $75 an order, about half of

486 ^ being delivered. Then there were plates and
stock of the histories, and altogether it figured up
fully $500,000. The capital stock of the History
Company was $500,000, and, we felt we had an
equivalent to it in every respect. Mr. Stone was
one of the incorporators of that company; he
never paid in a cent; not a dollar from first to last.
I was the owner of all that'property at the time the
agreement was made, or shortly afterwards, hav-

487 ing purchased my brother's interest and paid for
it with my own money, and I gave him (Stone)
an undivided one-tenth interest in that property,
without the payment of anything to me. After
the formation of the History Company, I trans
ferred to it the entire property mentioned in that
agreement, all the property of the Bancroft's
Works Department, which went to make up the
History Company — the capital. That business
had been carried on for some years by A. L. Ban
croft & Company under the title of the Bancroft
Works Department. The transfer which I made
to the History Company under this agreement,
included the good-will of that business, whatever
it might be worth. Leading up to that agree
ment, there was a general understanding between
Mr. Stone and me as to what services he was to
perform in this new enterprise, and what services
I was to perform. We consummated the arrange-

,gg ment, and the business was thereafter conducted
under the title of the History Company. I told
him I thought the business could stand a salary
of $350 per month, and that was given him, and
after I gave him the ten per cent, I gave him an
additional five per cent more with a view of
attaching him to the business and to make him
loyal and faithful, and able to carry out the busi
ness to its fullest extent. Both Stone and I were

1 66

490 incorporators of the History Company, and signed
the articles of incorporation, and both of us par
ticipated in the organization of the company.
After the formation of the corporation, all the
property mentioned in this agreement was turned
over to it. I never, from the time that agreement
was made, down to the date of the commence
ment of this suit, paid Stone any salary, and he
never demanded any salary from me. The salary
which was paid to him was charged on the books
49 x of the History Company, but was never charged
to my personal account. Stone's salary, with
other expenses, was deducted from moneys real
ized by the company before any profits or divi
dends were paid or declared. I think they kept
a salary account and credited the money to that
account, and then charged to the expenses; it
was some such way as that. As large dividends
were paid by the History Company, the property
A Q2 of the corporation decreased in value very rapidly.
The property of the company consisted very
largely of orders which had been taken for Ban
croft's Works, and as money was paid on those
orders, the debts of the company were paid and
the surplus divided from time to time, so that as
those moneys were paid in, dividends were de
clared, and we were constantly decreasing the
value of the property of the corporation; we

i67

493 were, in fact, dividing the capital stock. The
money I put in was paid out in that way; the busi
ness never made a dollar, and it is over $160,000
behind to-day. In May, 1892, there were very
few outstanding accounts left to collect and money
came in very slowly under the management; for
a year or two previous to that, all had been col
lected in that could be, and nothing was done to
build up the business. There was no new busi
ness added, and no attempt on the part of Mr.
Stone to increase or build up the business, and
the consequence was that before he went out, or
up to that time, it was very much reduced, and
the circumstances attending his going out, and
the influence he brought to bear against the busi
ness, helped still further to wreck it, until it is
pretty well gone in. As a matter of fact, we
made very few sales of the histories after the 1st
of January, 1892, although the market was just

40 s as o°0(l then as — I won't say as it was before —
still there was a good field for business, but Stone
stopped trying to sell the histories; he gave up
the thing altogether, and only tried to collect in
this money and divide it, so that practically the
business of the History Company about May,
1892, simply consisted in collecting in outstand
ing accounts, and about all those accounts that
could have been collected, had been collected at

1 68

496 that time. There was nothing to speak of after
that time from which to make a declaration of
dividends; there was nothing except sufficient to
meet our expenses and pay our debts. In May,
1892, Mr. Stone was doing nothing whatever ex
cept to collect in money and divide it; there was
no new enterprises being pushed forward; it was
the money which I had put in that we were get
ting back, and he was getting his 15 per cent of
that and $350 per month. From the interest
L"' which I presented to him, he received in divi
dends between $60,000 and $70,000, in addition
to obtaining $350 per month, and I got no com
pensation at all. Prior to May, 1892, I had a
great many conversations with Mr. Stone. I
was trying to get him to do something to make
more money or to build up the business so that
we could have something left after the histories
were sold and the money collected. The expenses

408 were almost as heavy as they ever were, and
nothing was coining back except in the way
of collections, and I saw clearly that the whole
thing would fall upon me to put up a lot more
money for him to divide, and I urged him to
reduce expenses and to make some new business;
he had always claimed that he was a man of
great ability, and could build up a business, so
that we could have something to go upon after

169

499 the history was sold and delivered and the money
collected, but I never could induce him to do any
thing except to collect in this money and divide
it. I had a conversation with him in May, 1892.
I went to him to his desk, and said to him: "What
is the matter, Stone? Mr. Dorland says you are
going to bring suit against the History Company,
or against me, and break up this business." He
said: "I won't talk to you." "Well," I said, "if
there is anything that I have done to wrong or
offend you or displease you, it is not necessary to
go to law, I ani ready to make everything right,
I am very glad to do it; I don't want any trouble,
and tell me what it is, and let us fix it up like
men and not talk about going to law." He said:
"I will talk to my wife first, and my lawyer next,
and you last." I said: "What is there to talk
about? What do you want to talk to a lawyer
at all for ? You know, Stone, I have been very
cOi liberal with you. I gave you first 10 per cent in
the business, and 5 per cent more, and when I
gave you the second 5 per cent, your voice
choked up in your gratitude to me for that gift."
I said: " Where is your gratitude now '( What
have I done that you propose to bring suit against
me and break up the business." His reply was:
" I will talk to my wife and my lawyer, and you
last." I said: " Mr. Stone, if there is any one

iyo

502 that has occasion to bring a suit, it is for me to
do it rather than for you. You know you have
broken faith with me in a dozen different ways.
You have not been loyal and true to the business;
you have not built up a business as you promised;
you have not relieved me from the labor and
work in this business that I wanted and expected
to be free from. In no particular have you car
ried out your agreement with me, or your good
faith with me." His reply was: " I will talk to

? my wife first, my lawyer next and to you last."
I said a good deal more and went over the ground
pretty thoroughly, and that is all the satisfaction
I could get. That is all the conversation I can
readily call to mind. I suppose I could think of
more, but that was what I said. This was about
the time that Mr. Morrison was elected Vice-
President. I think he was elected after that. I
said to him: " Mr. Dorland told me that you were

504 gomg to bring suit against me, and break up the
business." He did not dissent from that, but said
he would see his lawyer and then talk with me.
I never had any conversation with Stone from
that day to this that amounted to anything. I
never had any conversation with him from May,
1892, up to June, 1893, to speak of. I saw him
around the office of the History Company after
that time. I never in my life threatened to beg-

505 gar any man, let alone a woman and children, it
is not possible, it is untrue. I never said to Mr.
Stone or any other man or woman or child, or
never thought it in my heart, nor ever could do
it if I had. I never swore at Stone in my life; I
never had any violent controversy with him ex
cept on two occasions when he forced his way into
my room, and rendered himself odious where he
had no business to be. I was present at the time
of the episode that took place in the director's
room of the History Company. Mr. Stone was
not a member of that board. At that time we
were holding a director's meeting and levying an
assessment. No one had invited Mr. Stone to
come into the room, on the contrary, he had been
hanging around the room for some hours, and

O O '

slipped in when he found a director's meeting was
being held. I was there at the time he claims to
have been pushed out of the room by Colonel
cO7 Morrison. That room was my office and adjoined
the rooms where the director's meetings were held.
I had not invited Mr. Stone to come into the
room. When he came in, I was sitting at the
desk, and Morrison was standing near the desk,
and we were talking, he was between the desk
and the door, and the door was shut. Mr. Stone
opened the door and put in his head, and shook
his fist and said, " I will hold you personally

172

508 responsible for my desk being moved." I had not
touched his desk. He was violent and angry in
his manner. I did not reply, but turned to
Colonel Morrison and asked him if he would
please shut the door. I did not say anything to
Stone at that time, and that is all I said to any
body there. I never told Mr. Dorland or any
one else, that Stone had no right around the office
of the History Company, nor did I ever tell Dor-
land to tell Stone that. His rights were recog
nized there by everybody throughout, and never
interfered with in the slightest degree. I never
discharged or dismissed Stone from the service of
the History Company; that question never came
up. I have an indistinct recollection of passing
by where Stone was sitting at one time, and the
carpenters were at work and they had some lum
ber or something; I wanted to pass along there,
and 1 think I stopped one of them and said:

clo " Take hold of that; we will move this over a
little ways." Stone was sitting at the desk; I
don't think it was moved over six inches, and
very quietly without disturbing him or his papers,
or anything on it with any view whatever of
interfering with his work; and as a matter of fact,
it did not. He hitched his chair up and went on
with what he was doing; that is all there was
to that. That is the only time I touched his

173

desk while he was at work at it; the carpenters
were at work at that time and wanted a little more
room to pass where he was sitting; the end of his
desk came up to where their lumber was. I
never kicked Stone's waste-basket over; the
basket he used belonged to the History Company,
and it would be very poor taste of me to kick the
History Company's basket. I never, to my
knowledge, poured or scattered any ink over the
desk occupied by Stone. If any ink got on his
desk through me, I never knew it, and if it did
it was an accident, and as I say the desk did not
belong to him but to the History Company, and
it would be very poor satisfaction to me to turn
the inkstand over on it and daub it with ink.
The desk belonged to the History Company and
not to him, and if I had daubed it all over with
ink, it would not have spited him. I am inclined
to think that I did tell somebody to take the
!-!•} casters off Stone's desk. When he would come
down to wherever his desk was in the morning or
at noon, he would take the desk and shove it from
one end of the room to the other, making a great
racket. He did that over and over again. He
was trying to make things as disagreeable as he
could. He was going around whistling and hol
lering to this one and that one; that seemed a
part of his performance. I think I told somebody

-74

514 it would be just as well to have those casters all
taken off that desk, it would not make quite as
much noise. I have an indistinct recollection of
that. I would not swear I did it or said that;
that is my best recollection of it, but it was done
through self-protection, and it did not affect his
doing his work, and building up the business of
the History Company if he wanted to, but to
stop the racket that he made. I never ordered
his desk to be placed in a position where he could
not work; I had nothing to do with placing his
desk; the men were shoving it around the same
as any other desk; the desk which he occupied
was an ordinary sized one; he managed to shove
it around pretty well when it was on castors.
The desk was not so large or heavy that if put
up close to the wall, or so close to any other ob
ject, that a chair could not be put behind it or
moved out, and a chair lifted behind it. He was
never restricted as to where he should put his
desk; he had the whole floor of the room, and
always had some one there to help him. It was
not my business to go and look after the desk; he
was manager there and he looked after the room;
he was not interfered with in the slightest degree
in anything; he had the whole room and type
writers to himself in that room, and was not in
terfered with in the slightest degree by anybody

517 He was the manager, and it was not my place to
tell him what to do. I never told anybody to
throw any obstacle in the way of Stone, or to put
his desk in any particular place. I never gave
any order for the removal of his desk; on the
contrary, I came down one morning and found it
gone; somebody had moved it out of the room, I
do not know where, and I said that it had better
be put back. I never considered Stone discharged,
or that his duties were interfered witli in any de
gree. I had not been accustomed to direct him
in any particular. I had been away months at a
time, and when I was there I did not direct him;
he had full scope in the management of the
business. It was none of my business to see that
his desk was placed here or there, or that he had
a typewriter, or had not, or all the rest of what
has been set forth here. From November, 1892,
to March, 1893, I think I was residing in San
Francisco, and my impression is that I was in
attendance at the office of the History Company
during that time. Stone never spoke to me
about his desk at any time after the 1st of No
vember, 1892. I had not touched the desk at
the time he came and threatened to hold me re
sponsible; I did not know anything about it. He
never came to me and asked that his desk be
placed in any particular position. He never

1 76

520 came to me and stated that his desk had been
placed in a position where it was in any way in
convenient for him to work. He would not think
of such a thing as that, because he could place it
where he wanted to. No complaint ever came to
me through any source that Stone's desk had
been placed in a position where it was inconven
ient for him to work. No request ever came to
me through any other source purporting to come
from him, that his desk had been placed in any

•521 other position than that which it occupied. No
one ever told me that Stone complained that his
desk had been placed in a position where it was
impossible for him to work. I never told Trigo
or Morrison, in the City of Mexico, or any other
place that I proposed to oust Stone from the
History Company. I never wanted to oust him;
I wanted him to stay there; I never told Trigo
anything of that kind. I never made any such
statement to Morrison in Trigo's presence. There
was never any agreement between me and Stone
that Stone should be Vice-President of the His
tory Company for any specified time. I never
told Mr. Dorland not to permit Stone to do any
work in the History Company. I never offered
to pay any expenses for any litigation which
Trigo might institute against Stone.

177

523 CROSS EXAMINATION.

I think I came back from Mexico in February,
1892. I left here, I think, some time in Septem
ber, 1891, and reached there early in October,
and got back the latter part of February or the
first of March, 1892. I went to the City of
Mexico; I think it was in February that I left
there; I stopped at San Diego for awhile on my
return; I think I was there a month or two. I

think it was in April that I reached San Fran-
524

cisco; I think I was here a month or two before

the time when Stone threatened to sue me. I think
it was in May that he made that threat. I cannot
tell exactly what time in May, it seems to me it was
about the 10th of the month, or along there. I do
not remember what time I commenced suit against
Stone; I think it was the same day I had that
interview with him. I know Mr. Morrison com
menced a suit against Stone two or three months
525 after he returned from Mexico, and I think it was
about a month after I came up from San Diego
that I commenced a suit against Stone. After he
came back from Mexico, I observed Trigo look
ing over the letters of the History Company off
and on for a month. He was going to kill Stone
and going to bring suit against him.

Q. Who placed those letters at the disposal
of Mr. Trigo?

1 78

526 A. They were at the disposal of anybody in
the History Company. He was looking for some
thing to bring suit against Stone, so he told me.
I thought that in writing these letters that per
haps I had rendered Trigo injustice in some re
spects, although I considered I spoke very mildly
about him, and I did not want any enmity or ill-
feeling between Stone and Trigo. I wanted them
to understand one another. The letters I wrote
Stone in answer to his letters were to quiet him
down. I did not attempt in any way to soothe or
prevent Trigo from bringing a suit against Stone.
I did not do anything about it. I did not incite
Tritjo to sue Stone or Stone to sue me. In 1886

O »

I transferred $500,000 of property to the History
Company, and I gave one-tenth of all the prop
erty to Stone, and afterwards 5 per cent addi
tional. The 5 per cent was given to him some
time after the 10 per cent. I gave him 10 per
cent of all the property without any consideration
whatever further than his promise to be faithful
to the business. He had done nothing before
that except what he had been well paid for. I
o-ave him about $50,000, and u;ave it to him out

and out. I never received a dime in return —
$54,000 I think it was, and this is a specimen of
what I got for it. I never did so foolish a tiling
as that before or since in my life. That was the

179

529 worst thing I ever did, so far as money was con
cerned. I had in mind some services Stone had
performed, but he was paid for those services
over and over. The recital in the agreement that
in consideration of the valuable services done by
the said Stone in conducting the publication and
sale of the historical works of said Bancroft—
the said Bancroft hereby sells and assigns to said
Stone, one-tenth interest in said History Com
pany, paper, stock, etc.," was in one sense a fact,
in the sense in which it was intended; it was all
the consideration that was put in that agreement
which I signed, and what I stated there was the
fact, but it was not meant there that I owed him
anything further for what he had done; but, as
he had been at work on the history, and had
done very well, in consideration of this fact, and
the further promise of what he would do, I gave
him this out and out, but I was under no obliga-
tions, and no obligation is intended to be implied
in the written transfer. I did not mean this as
an equivalent consideration or payment. I did
mean what was recited in that agreement, with
this explanation that it had no reference to a
technical consideration, but that he had worked
on the history and had been fully paid for it, and
in consideration of that fact, I would give him
out and out this property, provided he would be

i8o

532 true and faithful to me to the end, as he prom
ised. The services which he had rendered, re
ferred to in the agreement, had been amply paid
for, and I wanted to give him $50,000 for what
he was going to do, for what he promised to do;
it was rny purpose in this transaction, knowing
that Stone had been fully paid for all that he had
done up to that time, to give him the sum of
$50,000, and I knew I was doing so — making
him a present of it. I am not frequently in-

533 Spired with thoughts of that kind. Stone had
gone into this history business as early as 1883,
and continued in it for a period of four years.
He had managed the business. To some extent,
it was the result of his labor that the History
Company had reached the degree of prosperity
in which it was at that time, but it was not pros
perous at that time. We had $240,000 that
was due, but there was not much money coming
in at that time; at the end of four years there was
that much money coming in. That money came
out of my pocket. I went into the History Com
pany. I paid the money for the manufacture of
the books and getting orders, every dollar came
out of me or out of the A. L. Bancroft Com
pany and stood on the books of the History
Company. I did not say that the condition, I
.said the prosperity of the History Company was

535 due to the management of Mr. Stone. Its con
dition was not due entirely to the management
of Mr. Stone; no one else managed it but him;
but its condition was due to other men also; it
was due to some extent to me. I worked there
right along. Stone managed the details of the
business, but I directed the business generally or
assisted in the direction of it. During that time
hundreds of thousands of dollars were taken out
of the A. L. Bancroft Company, and put in the

** selling of this History; some portion of it has
come back.

(Witness identifies a letter as having been
written by him, a portion of which is read as
follows:)

" February 4, 1884.
Dear Stone:

The History business is certainly in mag
nificent shape, and it is to you and no one else that it is
indebted for being so."

537 Witness continuing: I wrote that letter. The
boys require some patting on the back occasion-
ally.

Q. Do you pat them on the back with what
is not true?

A. To some extent it is true. I meant a
great deal of it. I do not mean to say that the
letter was not true which I wrote to Stone.
Sometimes he is a good deal of a boy. I thought

182

538 I could get more work out of him by patting him
on the back. I did not propose to deceive him
to get more work out of him than he was doing.
I was not deceiving him at all. To a certain ex
tent the statement contained in the letter was a
fact.

(Witness identifies another letter as having
been written by him, which is offered in evidence
and read as follows:)

"Jan. 27th, 188S.
Dear Stone:

I feel it is due to you for me to say on this
first dividend day, that you have stood by the History
Company nobly from first to last, and that it is through
your steadfastness of purpose in accomplishing a most
difficult and harrowing piece of work that success has
finally come. I hope for your sake as well as my own,
that, the dividends may continue right along, whiln at the
same time, the value of the plant and property is made all
the time to increase. A continuance of the same able
management is sure to bring about this result. For my
self, Iwill say, once more and once for all. that though I
may have spoken words which have caused you annoyance
and have differed from you in opinion once or twice, on
the whole we have been remarkably of one mind, I think;
I have never entertained for one moment in my heart of
hearts, any but the truest, kindest and most loyal senti
ments towards you.

Very sincerely,

H. H. BANCROFT."

At the time Stone and I made this agreement,
he was in the employ of A. L. Bancroft & Com
pany, receiving a salary, I think of $400 per

'S3

541 month, but I am not sure whether it was that
amount or not; it was not necessarily to be in
creased to $450 or $500 the next year. I did not
promise it to him. I am sure of that.

(A letter is shown witness which is identified
as having been written by him, and is offered in
evidence and read as follows :)

"Sept. 3rd, 1885.

Dear Stone:

I did not see last month's account until

542 yesterday, when I noticed that you drew only $350. If I
remember rightly this w^.s the amount you drew last
year, ending Jane 30th, 1885, and as I understood, it
has been settled that you were to have $400 next year,
that is from July, '85 to July, '86, $450 from July, 1886,
te July, 1887, and then $500 so please draw accordingly.
Enclosed is a letter to Ora Oak, which, if it meets with
your approval, please forward.

H. H. B."

[Marked "Plaintiff's Exhibit 9."]
That letter shows that it is settled. That was
(-43 talked over between Stone and myself; I was
satisfied for him to receive that amount, so far as
I was concerned, but the matter had never been
submitted to or determined by A. L. Bancroft
& Company, which was a corporation. It never
had come up before the Board of Directors; it
had never been passed upon by A. L. Bancroft &
Company. So far as I was individually concerned
I was satisfied with that amount, but it was no

544 expression of anything, because it was in a
tangled shape, and nothing he could trade on. I
say that so far as I was concerned, it was settled
that I was willing to do that. I did not know
I could do that when I wrote the letter, not by
myself, it required the Board of Directors of the
corporation to confirm it. I could not entirely
have his salary fixed at that figure by myself; I
did not know that I could have it fixed at that
when 1 wrote the letter. As I have explained,

' so far as I was concerned, it was satisfactory to
me but it had to be confirmed by the company.
It was settled between him and me, provided
everything was satisfactory ; that was under
stood. I told him to draw accordingly, lie might
draw. It was not settled that he was to have
that salary ; it was settled between him and me,
and in the meantime he could draw, and if the com
pany ratified or sustained me, it was all right. I

546 do n°t pretend that was in the letter, but it was
understood. Everything was understood. I was
willing it should be done, but I did not promise.
He says it was settled. The property I conveyed
to the History Company consisted of plates,
paper, and we have those plates yet. The com
pany has had the use of them right along, and I
have had the benefit, of course, in accordance
with my shares in the company. The paper was

547 used up. Besides money and outstanding accounts,
there were these orders that cut a very large figr
ure, and contracts with subscribers; that repre
sented the subscribers, and also, in a great many
cases, the amount of money. It is classified here
as money. We had paid for taking those con
tracts; we paid from $25 to $75 apiece for taking
the order, that represented actual money paid out.
I don't think Stone obtained any of those orders
that were taken. They were taken by men paid
for with money out of my pocket.

(Witness is shown a book called " Literary In
dustries," which he testifies was published by the
History Company under his supervision, from
which the following extract is read:)

" Mr. Stone had followed me in my historical efforts
with great interest from the first. He had watched the
gradual accumulation of material, and the long labor of
its utilization. He believed thoroughly in the work, its
plan, the methods by which it was wrought out, and the
great and lasting good which would accrue to the country
from its publication. He was finally induced to accept
the important responsibility of placing the work before
the world, of assuming the general management of its
publication and sale, and devoting his life thereto. No one
could have been better fitted for this arduous task than
he. With native ability were united broad experience
and a keen insight into men and things. Self-reliant,
yet laborious in his efforts, bold, yet cautious, careful in
speech, of tireless energy, and ever jealous for the reputa
tion of the work, he entered the field determined upon
success. A plan was devised wholly unique in the annals

1 86

of book publishing, no less original, no less difficult of
execution than were the methods by which alone it was
made possible for the author to write the work in the
first place. And with unflinching faith and loyalty Mr.
Stone stood by the proposition until was wrought out of
it the most complete success."

I was aware of this matter being published in
the book when it was published. It was not pub
lished without my knowledge, that is supposed to
be history. This is not history, it is personal
reminiscences; I published it as true, and believed
it to be true. I believed at that time that all I
said of Mr. Stone was true. My history needs
some explanation. This book was published in
1890, and I knew when it was published; I knew
it was sent forth to the world. That biography
was written by me in Cheyenne in the year 1884
or 1885, and while I was in Cheyenne and writ
ing that there, he was playing the traitor, trying
to sell me out to my brother on some proposition.
If I had known at that time what I know now, I
would not have allowed this to be published in
1890; I should not have printed it if I had been
as fully advised as I am now. I would not say
that if I had known in 1890 what I learned be
tween 1884 and 1890, I wTould not have allowed
the book to go out with that statement. I wanted
to avoid an eruption with Stone, and if I had
left that out there would have been trouble. I

.87

553 revised the book and published another edition;
that was a year or two later; it was in 1891 or
1892. I don't know if I was to publish this
again if I would not print it now. I have never
wanted to do anything that would injure Mr.
Stone in any way. I might probably publish now
what I said there, if I were printing it; I would
not change it at all. In 1890, when the second
edition was produced, it was greatly reduced in
volume. I cut out a great many things; it is

55^ reduced a good deal. Precisely the same thing
was published in that edition as was in the first
one, and it goes to show I did not want any
quarrel with Mr. Stone. I did not want a row
with him.

Q. You told the truth about him because you
did not want a row with him ?

A Yes, as far as you tell the truth in giving
the good qualities of a man in his biography,

ere leaving out the bad about him. When you speak
of the facts a man has done you must not neces
sarily tell the truth about it, or let him alone.
You can state the good things he has done in
business and praise him for that, and overlook
the bad and that is about what I did. I could
say a great deal bad about the man after I had
said what I did here in his praise; I did not say
everything bad there that could be, said.

1 88

556 Q. (Reading from the work written by de
fendant:)

557 one could have been better fitted for this arduous task
than he."

Do you see any place there where you could
have said anything bad about him ?

"With native ability were united broad experience and
a keen insight into men and things. Self-reliant, yet
laborious in his efforts, bold, yet cautious, careful in
speech, of tireless energy, and ever jealous for the reputa
tion of the work, he entered the field determined upon
success."

558 That was all true?
A. Yes, sir.

Q. "A plan was devised wholly unique in the annals
of book publishing, no less original, no less difficult of
execution than were the methods by which alone it was
made possible for the author to write the work in the first
place. And with unflinching faith and loyalty, Mr.
Stone stood by the proposition until was wrought out of it
the most complete success."

That was all true ?

189

559 A. I should not say that lie was not loyal
now. That is about the only word there that I
would qualify. As I have said I made Stone a
present of 5 per cent additional of the stock of
the History Company; that was entirely without
any consideration, but out of my own generous
feelings. There had been some talk about a
musical department. Mr. Stone went East to get
some agency; we wanted the Steinway and some
other, and failed entirely to do that; failed to ac
complish anything. On that expectation, and in
consideration of that partly, and partly to bind him
further to the proposition, I gave him the 5 per
cent without any solicitation or any idea on his
part he was to get it until I handed it to him.
The reason I gave him the stock was from gener
osity, and to make him loyal to my interest. The
value of the gift was about $25,000 as it turned
out. I viewed it at the time as a gift to him, and

r^j as a matter of fact it put at least $20,000 in his
pocket. His labor never brought me anything
except to collect and apportion out the money I
had paid in. He had received 5 per cent and got
$20,000 in the way of dividends. I did not get
it from his efforts, I got it from money put in
from A. L. Bancroft & Company, which was put
in by me, which had been from a lifetime of labor
and it was that money which was coming back,

562 and not money that Stone had earned in any way.
The letter written by me to Stone congratulating
him on the first dividend, and saying that it was
to him alone that the success was due, was rather
exaggerated; I feel that the letter was more
exaggerated now than at the time I wrote it.
Circumstances have changed since then. I knew
how the business had been conducted up to that
time, knew what the results were, and knew that
it had resulted in a dividend. I think I got 80

s- «-?

** per cent or 85 per cent in dividends; the differ
ence was that I was getting back my money, and
was getting none of his money: I had no fault to
find with Stone; at the time when I wrote him I
meant praise ; I spoke kindly to him and encour
aged him to go forward and do all he could. I did
not think the facts were misrepresented to him, to
construe that statement literally would be to say
that Stone wrote the history as published, and he
had got the dividends out of his own labor and
capital. It is not a fact that I and Stone and a
third party organized what was called the His
tory Company of Mexico; I think there was
some talk of using that term down in Mexico.
We did not organize a company in the fall and
lose from $30,000 to $40,000; we did not organize
any company at that time that I have any recol
lection of. It was talked of, and I think we used

565 the name of Mexico, but without any organiza
tion or any significance in particular. We did
some business. The third party was Urrea; he
was merely engaged. There was no agreement
that Mr. Stone was to have anything except as it
belonged to the History Company, and his profits
were to come in under that category. There
never was any arrangement that Urrea should
have two-fifths and that Stone and I were to have
three-fifths. We may have talked of something
of that kind, and if so, it entirely went out of my
mind.

(Paper shown to witness, which he identified
as being in his handwriting, which is offered in
evidence and read as follows:)

" BASIS OF BUSINESS.

N. J. Stone and H. H. Bancroft will ship goods to Mex
ico for R. Urrea to sell, Urrea to act as manager, with a
salary of $250 Mexican money a month, and 2-5 of the
567 profits, while Stone and Bancroft will have 3-5 of the
profits without salary and attend to Cal. and U. S. pur
chases, all goods from the United States to be ordered
through them exclusively, and the money remitted to
them for the same.

Stone and Bancroft to appoint the Cashier, and be
responsible for his acts. The Cashier will receive and
account for all money and goods, keep such books and
write such letters as are necessary, or as he may be able
to do ; have charge of store and goods, and be responsi
ble therefor ; make out monthly report, keeping one copy
on file and rendering a copy to Stone and Bancroft and a

192

^68 c°Py to Urrea ; every three months rendering a full
statement of condition of business, with division of pro
fits, 2-5 to R. Urrea and 3-5 to Stone and Bancroft. The
business must be done strictly for cash, no money bor
rowed, nor debts of any kind contracted. Until the His
tory Company of San Francisco is fully paid for all grtods
sent, all receipts except Histories in Mexico to be taken
by Mex. Co. at ^ retail price, American money, but not
to be charged up at once, but only accounts can be
adjusted, the whole time however not to exceed six
months. The Mex. Co. to have the benefit of all sub
scriptions taken up to this time (March 10th, 1887) free
of charge, but to stand expense of settlements and col-

569 lections of Vols. — that is to say, to clean up the History
business in Mexico free of charge. This does not include
the 100 sets first sold to Govt. on which the Mex. Co. are
to receive 5 per cent. com. for delivery and collection,
with no further commissions to outsiders ; no one con
nected with the business may overdraw his account, or
use any of the money of the business except for its own
legitimate purposes, no money of the business is ever to
be loaned to any person or persons under any considera
tion ; no one in the service of the Company is to do busi
ness on his own account.

A. R. Urrea is to hold himself personally responsible
to Stone and Bancroft for the faithful performance of

570 agreement so far as he is concerned. Prices of History
delivered in S. F. in American money, ^ of retail price ;
Life of Diaz, the same. Small History of Mexico, the
same. Readers, — prices to be made according to cost.
After first shipment of goods by History Co. of Cal. and
the cleaning up of Histories scattered through the Re
public, all orders of History Co. Mex. to History Co. Cal.,
are to be accompanied by the money.

The Cashier to send A. R. Urrea a copy of the monthly
report, and of all reports, wherever he may be ; and the
History Co. of Cal. to send the History Co. of Mex. a
statement of accourt every month. The History Co. of

193

cyi Mex. are to have the exclusive sale of Bancroft's Works
in Mexico and Cuba, and on all orders taken by the His
tory Co. S. F. are to be allowed to the Mex. Co. a com.,
the same as if taken by the History Co. Mex.

Should any question arise which cannot be settled by
the parties themselves or deputies, such matters shall be
settled by arbitration, in the usual way, in San Francisco ;
neither Urrea, Stone nor Bancroft shall dispose of their
interest in this business, or any part of it, except to the
others, or either one of them, until the business is incor
porated.

The History Co. of Mexico has the right to sell Life
of Diaz and Readers ; and Spellers, wherever it may

572 choose ; but this does not prevent the History Co. of Cal.
from selling the same anywhere outside of Mexico and
Cuba. Any person traveling at the expense of the busi
ness at any time, must on his return file with the Cashier
a written statement of his expenses, before the same be
allowed.

r, Robert Vantright is to be the first Cashier, with
expenses paid from S. F., and a salary to begin when he
starts, of $150.00 a month, Mexican money.

Urrea's expenses to be from S. F. and his salary to date
from first of March."

We did not begin business in Mexico upon that
573 basis; that is a scratch of a paper that I made out,
a scheme that was running in my head one day
. and Stone got it and kept it to bring it here in
this case as an important matter, as an agree
ment. It was not an agreement, that paper was
not signed and never was in effect in any way.
We did not ship any goods to Mexico under that
transaction. We never shipped any goods on ac
count of myself and Stone and Urrea. Urrea

i94

574 went down there to 3ell goods, bat we never
trusted him; we didn't begin business in Mexico;
I did not have prepared a set of school books or
readers under that memorandum. Stone and
Urrea and I did not start business there and have
prepared a set of school books, readers; the His
tory Company did it, not Stone. Stone and
Urrea and I did not prepare school books for
Mexico, and begin trading with them or selling
them. We prepared them, or the History Coin-
pany prepared them here, and they were shipped,
but not Stone and Urrea and myself in partner
ship. They were made and shipped to Mexico
and sold there, some of them. We got up sev
eral series and shipped them there; we had
several men attending to the selling of them;
Urrea was one until he proved to be a rascal, and
then we had another one, and, finally, the last
rascal we got there was Trigo. All of them
proved unfaithful. I discovered Trigo to be a
rascal after he came back here, and had some
lawsuit with me. To the best of my recollection,
the memorandum shown me was simply a mem
orandum that was on my desk and fell into Stone's
hands, and nothing whatever was done under it;
no books were opened, and no books were kept to
the best of my recollection. I had forgotten all
about this. I did not say that the paper was not

195

577 intended to be delivered to Stone, and that he
found it and kept it ever since for the purpose of
some law suit; I did not say he took it from my
desk. I say I scratch off such things very often,
schemes that come into my head, and I handed
them to him, submitted them to him. I don't
know whether it was taken from my desk or I
handed it to him. As a matter of fact, that
.property was all given to him. He never paid
anything on that arrangement. The paper is not
*' dated that I can see I say the paper had passed
out of my mind altogether; I have no recollec
tion of the paper at all, it was a simple memo
randum of something; I do not know where it
was written. I do not remember where I was on
the 10th of March, 1887.

(Letter shown witness, which he admits to be
in his handwriting.)

This paper indicates that I was in the City of
cjg Mexico on the 9th of March, 1887; without re
ferring to this I don't remember where I was at
that time. I should say I was in the City of
Mexico on the 9th of March.

(Looking at the page of the memorandum al
ready offered in evidence.)

From this, I should say I was in the City of
Mexico at the time that was written; that I
wrote it there and mailed it to Mr. Stone, it could

196

580 hardly be otherwise. I did not say that it was
written in San Francisco and on my desk, and
that Stone got it in a surreptitious way. I said I
was in the habit of scratching off memoranda; it
seems that I scratched that off in the City of
Mexico and sent it to him. I do not remember
that I enclosed it in this letter; I presumed I
mailed the letter to Mr. Stone, very likely at that
time, Mr. Urrea was down there with me at that
time, if I remember rightly. We did not make
[ books and ship them down under that arrange
ment. I do not remember anything about show
ing this to Urrea, it has passed entirely out of
my mind; there was nothing done about it that I
know of. This was not sent by me to Stone as a
basis of a business proposition which I desired
him to enter into with me and Urrea.

Q. This is a letter you have already identified,
the last one I showed you dated from the City of

-g2 Mexico. March llth. I will read a portion of
the letter: "I will leave letters for Vantright,
and a copy of the basis of business which I send
you, so that he will have the situation before him
as well as I can give it to him. Urrea expects to
be gone about a week, but probably Vantright
will get there before Urrea returns, though not
long before. I have taken the greatest pains to
make everything clear, both to you and Vant-

i97

583 right so that the business here may be intelli
gently followed by you from the beginning. I
have done what I came to do. I might see more
people if I should stay longer, but it would
amount to nothing. I would be glad to get more
money, but I should have to stay a month or six
weeks longer for it, and I know it is in shape now
for Urrea to get. I hope you will so get this
business in hand as to be able to manage it with
out much extra wear upon yourself. I shall have
•" to leave this and everything else before very long
entirely with you, after you, that and I hope to
see the day when everything will be on such a
thoroughly sound and profitable basis as to run
without the heavy care and risk it is now under;
in fact, it has got to come to that, and if we now
work and extend here and there, it is one day,
and that not very far distant to drop what does
not pay, even if in the end we come down to a

rgc peanut stand." You gave a copy of that also to
Urrea and Vantright, mentioned in that letter ?
A. I think not, no sir. I should infer from
the letter that both Urrea and Vantright that
neither of them were there at that time. I say
it passed out of my mind, that whole thing, as a
matter of fact Vantright got there shortly after
that. If I remember right, Urrea shortly went
out of the whole thing, and nothing came of it.

198

586 I don't remember whether after my return to San
Francisco, I spoke to Stone about this paper, or
not. I spoke to him about the Mexican business
as a matter of course, and we were talking about
business all the time, one thing and another. I
presume after this letter of March 10th, I con
sulted with or wrote Stone concerning the pros
pects of business in Mexico ; I don't remember
anything of the kind, but it would be strange if
I did not. I may have talked to him about enter-

^ ' ing into, or carrying out business on this basis,
but I have no recollection of anything about it,
it fell to the ground, and there was nothing done
under it. When I returned to San Francisco,
there was no business talk that I can now remem
ber. I would not say that this written basis of
business that I sent him from Mexico was never
referred to after my return ; I do not remember
speaking about it ; there is nothing more that I
recollect about it than appears from these papers.
I do not rember sending the goods to Mexico by
Urrea, the result of which was a loss of $30,000
or $40,000 ; such a loss did not result through
Urrea. We sent down some goods, I think he
sent for. He was there and Vantright went
down and took charge of those goods, and Urrea
left some time after that, and has had nothing to
do with the business since. I don't remember

i99

589 that there was any loss on his trip down there ;
there was no association that sent goods to Mex
ico except the History Company. If Stone and
I were charged on the books of the History Com
pany with the goods sent to Mexico, they should
not have been so charged. I have no recollection
of having consulted with Morrison to any extent
as to the removal of Stone from the office of
Vice-President of the Company ; it may have
been alluded to that if he did not do better than
he was doing, he might have to change. I have
no recollection of consulting with Morrison about

that matter. I have no recollection of talking to
Morrison about it ; it seems to me that something
came up in case that Stone was not elected. I
did not say that I did not talk with Morrison
about it, but I have no recollection of it. I did
not remove Mr. Stone after my return ; I do not
know that you could call it a removal — at the
en! next election of officers, he was not elected and
Mr. Morrison was. I think Mr. Morrison was
not there at the time. Morrison could not have
been elected without my wishing him to be so.
The duties which Stone had been performing did
not devolve upon Morrison after his election.
Mr. Stone attended to his business as manager,
and Mr. Morrison to his as Vice-President, and
attended to outside business. We had never

200

592 elected a manager; the by-laws did not provide
for a manager. The business began to decrease
after the sale of the histories ; no other business
was added to it ; it required some work on the
part of the management to supply the entire
market with the history ; that end was accom
plished largely before the organization of the His
tory Company. At that time there were some
7,000 and two or three hundred good orders on
the books. At the time Mr. Stone left, when it
was Wound up, counting all that had been deliv
ered, there were some 6,000 good orders, show
ing a loss during his term there of over 1,000
good orders instead of a gain ; some of them
turned out bad ; there was no increase but rather
a decrease in the number of good orders during
the time that Stone served as manager of the
History Company. Some of the orders taken
before the Bancroft fire were bad. It may have
keen that the great bulk of the orders which
turned out bad were taken before the fire,
although I don't think so. If they were, Mr.
Stone took them as bad orders and paid out good
money for them. There were nearly 10,000
orders taken altogether ; I don't think they were
all taken before the fire. Besides all that were
marked as bad, the number that went into the
History Company at the time of its organization,

201

595 there were some seven thousand and two or three
hundred, the actual value of which it is hard to
give ; they were supposed to be good at the time
and were so counted and accepted. A good
many of them were not collected, I don't know
exactly how, at the end of the term, there were
1,000 less good orders than when it started. A
good many of the orders that Stone took before
the organization of the History Company turned
out bad, and some he took after the organization
of the History Company turned out bad, but I
don't know what proportion of the lot. I say
most decidedly that Stone helped to wreck the
business. I did not intentionally have anything
to do with wrecking the business. I worked very
hard for the business during the whole time,
receiving no salary for it, and if it is wrecked, I
don't think it could be charged to me. It is
pretty well wrecked. During the time Stone was
in the management of it, it was wrecked past
redemption. My judgment is that Stone wrecked
it and not myself. It is not a fact that I wrote
and published things which caused the wreck and
ruin that I have spoken of.

RE- DIRECT EXAMINATION.

I have no recollection of ever having placed a
saw-horse on the desk of Mr. Stone ; I may have

202

598 done so. There were some saw-horses in the aisle
where they walked along, and his desk not being-
used, I may have picked up a saw-horse and laid
it on the desk. I don't remember it. I don't
remember kicking any basket. The money fur
nished in this Mexican business to make up what
ever loss was incurred in it came from the His
tory Company, but in reality it came from me.

GEORGE H. MORRISON

was recalled for further cross-examination, and
testified as follows :

I know Mr. Boyns. I first met him about
three years ago. I do not remember whether I
knew him in June, 1889. I knew him as an
employee of the History Company.

Question by plaintiff's counsel : I will ask you
if it is not the fact that while Mr. Boyns was an
600 employee of the History Company, between Sep
tember, 1889, and March, 1890, at the History
Company's office, in the City and County of San
Francisco, you did not point to Mr. Stone and
say to him, (Boyns), "That man is a snake in the
grass, he is a bad man, look out for him, have

O ' *

nothing to do with him," or words to that effect ?

This question was objected to by defendant on

the ground that it was irrelevant and immaterial,

203

6oi and not cross examinntion, and as Laving taken
place two years before Mr. Stone claimed to have
left the History Company, and on the further
ground that this witness is not a party to the case,
and the defendant could not be bound by his state
ments to Mr. Boyns, or anybody else, that Mr.
Stone was a snake in the grass, and that it is a
collateral matter.

Mr. REDDY : It is the purpose of laying the

foundation for contradiction on that point. This

602

witness stated that he had never said anything

by way of criticism of a fellow officer or anybody
else.

The objection was overruled by the Court, to
which ruling defendant duly excepted.

Exception No. 34.

A. I don't remember using any such expres
sion to Mr. Boyns, or any one else.

I know Mr. S. B. Moore. I have known him
6O , about the same length of time that I have known
Mr. Boyns.

Question by plaintiff's counsel : Do you remem
ber having said to Mr. S. B. Moore at the place
I have named in the History Company's office
along about July, 1889, that Mr. Stone just the
same as robbed him by discriminating against him
in the allowance of commission, and that it was
just the same as taking money out of his pocket,
or words to that effect ?

2O4

604 Tliis question was objected to by defendant on
the ground that it was irrelevant and immaterial,
and not cross examination, and entirely collateral
to any question presented here.

A. I have no recollection of any such conver
sation.

Witness continuing : Mr. Stone was then
managing the business ; the matter was entirely
in his hands — all the details. I had nothing to
do with making contracts or fixing commissions.
If some money was taken out of Mr. Moore and
paid to the company, I would be a participant in
the profits with them. I have no recollection of
any such conversation either with Boyns or
Moore. I remember that Stone was not very
regular in his attendance at the business during
the latter part of the term. During the latter
months, after my return from Mexico, he was not
very faithful in his attendance at the office. I do
606 1)Ot mean to state anything as to the manner in
which Stone transacted the business at the office
prior to my return from Mexico in 1892. When
I gave my testimony on that subject, it was in
relation to his attendance after my return from
Mexico. Stone never made any application to me
that I remember to have his desk removed from
one part of the History Company's office to any
other part. If he had done anything of that

205

607 kind, I should remember it. I never told Stone
that he had no right in the History Company's
office.

DEFENDANT RESTS.

W. C. BOYNS

, was called as a witness for plaintiff in rebuttal,

^ Q

and after being duly sworn, testified as follows :
I had conversations on several occasions with
Mr. Morrison concerning Stone while I was an
employee of the History Company. My employ
ment began there in September, 1892, I think,
but I am not sure. I had a conversation with
Mr. Morrison in the History Company's office, in
the City and County of San Francisco, while I
was an employee of that company — several con-
600 versations concerning Mr. Stone, two or three
that I can say positively.

Question by plaintiff's counsel : State whether
you had any conversation with Mr. Morrison in
the month of September, or at any other time,
between the month of September, 1889, and
March, 1890, have a conversation in which Mor
rison said, pointing to Stone, " That man is a
snake in the grass, a bad man," or words to that

206

610 effect. This question was objected to by defend
ant on the ground that it was irrelevant and im
material, that it was an attempt to contradict the
witness on a collateral matter.

A. Yes sir ; that expression was used by
Morrison with reference to Stone on several occa
sions. He said Stone was a snake in the grass,
that he was a bad man, and no good generally.
I cannot recall any specific occasion ; it was sim
ply the general tenor of his instructions to me
when he would go away, that I was not to have
any dealings with Mr. Stone, for the reason that
he was no good. I cannot remember the exact
words he used.

CROSS-EXAMINATION.

Those were practically standing instructions to
me. I knew that Stone was the manager of the
History Company, but I was not working under
him. I have no feelings toward Mr. Morrison.
I have not a very high opinion of his character.
I don't feel friendly towards Mr. Bancroft. I
have no friendly feelings towards him. I have
some litigation pending against the History Com
pany now.

S. B. MOORE
was called as a witness for plaintiff in rebuttal,

207

613 and after being duly sworn, testified as follows :

I reside in San Francisco, and am an under
writer for the New York Life Insurance
Company. I know Mr. Morrison, and was
acquainted with him during- the year 1889. I
was employed by the History Company during
the whole of that year.

Question by plaintiff's counsel : State whether
or not you heard Mr. Morrison, at the History
Company's office, in the City and County of San
Francisco, in the month of September, 1889, or
at any other time between that and the first of
March of the following year, say to you that Mr.
Stone had as good as robbed you in discriminat
ing against you in commission, and that it was
equivalent to robbery, or words to that effect?

The question was objected to by defendant, on
the ground that it was irrelevant and immaterial,
and an attempt to contradict the witness on a col-
615 lateral matter.

The objection was overruled by the Court, to
which ruling defendant duly excepted.

Exception No. 35.

A. I did sir.

CROSS-EXAMINATION.

When I was employed by the History Com
pany, I was engaged by Mr. Stone. Colonel

208

616 Morrison told me that Mr. Stone had nothing
more to do with the work I was engaged in the
last few months I was with the company, that I
should not consult with him at all about it, but
that Morrison was the man, that Mr. Bancroft
had made him the manager of this particular
department, and I should look, not only to him
self, but to Mr. Ruddick and Mr. Boyns, who
were under him. So far as pay was concerned, I
was under Mr. Stone's orders, but I was under
' Mr. Morrison's orders. I don't know that I have
any particular feeling towards Morrison, only he
has made statements that don't seem to hold out
as reported. That was in reference to my com
mission with the company. He made! some
misrepresentations about my commission. In
the conversation which I have testified
to, Morrison told me that I ought to have
had more compensation than Stone was willing to

618 S*ve me- ^ ^at particular time, as far as the
engagement was concerned, I was with Stone ; I
should say the bargain was made with Stone for
this office, and then very much to my astonish
ment, Mr. Morrison told me that Mr. Stone had
nothing to do with the bureau, that Mr. Bancroft
had placed him at the head of it, and I should
have nothing to do with Mr. Stone whatever.
He told me that Stone had paid me the very

209

619 smallest amount that anybody in the agency had.
He said, "Mr. Moore, it is like putting his hand
in your pocket and taking out your good gold, doing
as he has done ; it is simply robbery," arid then
he reiterated what he said to Mr. Boyns that he
was a snake in the grass, and that he wished me
to have nothing to do with him ; consequently, I
told him, that thereafter I would not go out
through Mr. Stone's office, but I would go out of
the front office, which he told me would be the
proper thing to do, so that I would not
come in. contact with Mr. Stone. He told me
that Stone was a snake in the grass and a bad
man, and to have nothing to do with him. I
thought at the time that he was telling me the
truth, and I afterwards went and examined the
books. That is the sum and substance of the
conversation which I had with Mr. Morrison,
that he wanted me to have more money from the

62 x History Company than Mr. Stone was willing
to pay me, for the business I had done.

N. J. STONE,

the plaintiff, was recalled as a witness for plaintiff
on rebuttal, and testified as follows:

I heard the testimony of Dr. Miller while he
was on the stand, in which he said I had not paid

210

622 him the $500 which he charged me for personal
services to my boy.

Question by plaintiff's counsel : State whether
you paid that to him, or not ?

This question was objected to by defendant on
the ground that it was irrelevant and immaterial,
and an attempt to contradict Dr. Miller on a
question entirely collateral, and brought out by
plaintiff on cross-examination, and objected to at
the time by defendant.

MR. REDDY : If Your Honor please, it would
be hardly fair to bring Dr. Miller here on the
stand and put this witness in the light of having
refused to pay anything for services rendered, and
not permit him to show the real fact, or contra
dict him if we can.

MR. McCuTCHEN : We brought Dr. Miller
here to testify to such things as we considered
relevant, and counsel went out of the way, in
624 sP^e °f our objection, and insisted that Dr. Mil
ler should state the facts in relation to the ser
vices rendered to the plaintiff's boy, and the ren
dition of his bill therefor. This was on his cross-
examination and against our objection.

The objection was overruled by the Court, to
which ruling defendant duly excepted.

Exception No. 36.

A. I did pay him the bill. I paid $500.

211

625 I never told Mr. Elliott the History Company
was going to pieces. I never said anything to
him about the condition of the History business.
I never stated to Mr. Bancroft in any conversa
tion with him that I would bring suit and break
up the business of the History Company. Mr.
Bancroft never presented to me 5 per cent of
the stock of the History Company. Prior to the
purchase of the Bancroft Company in 1887, and
between that time and the organization of the His
tory Company in 1886, Bancroft and I were
associated together, in the Mexican Company.
We were equal partners in publishing books and
selling them in Mexico, together with Mr. Urrea,
according to an arrangement we entered into
together, we did not draw papers, that was the
understanding, that we were to manufacture
books and send them to Mexico, and carried on
the business. After the purchase of A. L. Ban-
croft by the Bancroft Company, the subscription
department of A. L. Bancroft was taken at once
in the History Company and became a part of it,
and Mr. Bancroft and I were equal partners in
that, and we also secured the agency, Eastern
agency, for books and he and I were equal part
ners in that, and we were also equally interested
in the Bancroft Company. After we had
arranged these matters, I was placed in the posi-

212

628 tion of being an equal partner in the Bancroft
Company, a business down stairs which was all
right, and up stairs I was in charge of the sub
scription department and I was in charge of the
Mexico branch of the History, in which I had
one-half, and I was owner of ] 0 per cent of the
History Company, and I told Mr. Bancroft it
was a very awkward position to place a man in,
and I thought he should adjust that matter ; I
only having an interest of 10 per cent of the
stock in one part of the business and 50 per cent
of the other, so afterwards in settling that mat
ter, we decided he should issue to me 5 per cent,
more of the History stock, and my interest in
the entire thing should be 15 per cent and that
was the arrangement, and that was done. We
carried on business in Mexico under that arrange
ment, and it continued up to the time I was
deposed as Vice-President. The History Com-

610 Pany became responsible in San Francisco, and
paid for the material that was sent to Mexico.
We paid it in San Francisco from the general
funds, with the understanding that that was to be
the first money that was paid back, and
after that we were to divide the profits. That
was the consideration upon which the 5 per cent
of the History Company's stock was delivered to
me by Mr. Bancroft. It is not a fact that the

213

631 dividends that were paid by the History Com
pany came from the collections of accounts and
matters which Bancroft had transferred to the
History Company. They came from the orders
that were taken very largely after the organiza
tion of the History -Company ; after the fire.
Only a small proportion of the accounts trans
ferred by Bancroft to the History Company were
collectable. I know that over 60 per cent of the
orders which remained on the books at the time
^ of the fire, were cancelled as worthless. A great
deal was found to cost as much to collect as it
was worth.

CROSS-EXAMINATION.

I was the manager of the department. This
Mexican business, on the basis of which I got 5 per
cent more of the stock of the History Company,
got all its money from the History Company to
633 Pav a^ *ts expenses, and at the time that money
was being paid out 90 per cent of it belonged to
Mr. Bancroft and 10 per cent of it belonged to
me. Yet I was to have 50 per cent of it, and
he was to have 50 per cent, although his money
was used in that proportion to build up the busi
ness, and I was to manage it. I did not pay out
a dollar individually in entering into this Mexi
can enterprise, of which I was to get 5 per cent

214

634 °f the stock of the History Company, it all came
out of the History Company in which I had an
interest of but 10 per cent, and when I got
through with all these transactions, I had 1 5 per
cent of the stock without paying out any money,
whereas I only had 10 per cent before that. The
demand which I made on Mr. Dorland was
shortly after the first of January, 1893. I can
not tell the date. It was taken down by a short
hand reporter, who may have written it up, but
^ I don't know. Mr. Borland's reply was that he
had no authority and would not allow me to go
to work there, that Mr. Bancroft was away and
he was not in charge, and he had no authority
and would not permit me to go to work. That was
his language, I am quite sure of that. We had
several more conversations back and forth. That
was all he said on that subject. I asked him if
he was in charge, and he said he was. I asked
him if he would let me go to work and he said
he would not, that he had no authority to let me
go to, work, that he would not let me go to work.

Thereupon, the testimony was closed. De
fendant moved and requested the Court to sub
mit to the jury the following special issue, to wit:

215

637 Were the services claimed to have been per
formed by the plaintiff rendered for the History
Company, or for the defendant ?

The motion and request were denied by the
Court, to which ruling defendant duly excepted.
Exception No. 37.

Thereupon, the Court charged the jury, as fol
lows :

CHARGE TO THE JURY :

GENTLEMEN OF THE JURY : This is an action
630

brought by N. J. Stone against H. H. Bancroft,

setting up as the foundation of the suit, a con
tract which has been read to you several times
during the trial, and alleging that the plaintiff has
honestly and faithfully performed all the terms
and conditions of such contract, and that the
defendant has failed and neglected to perform the
terms and conditions upon his contract to be per
formed, and has failed and neglected and refused
639 to pay the stipulated amount as claimed to be pro
vided in the contract, and demands judgment in
the sum of forty-nine hundred dollars for salary
for fourteen months, at the rate of three hundred
and fifty dollars a month, and claims in the prayer
that the plaintiff is entitled to forty-nine hun
dred dollars and interest thereon, at the rate of
seven per cent per annum. The answer
denies that the plaintiff has honestly and faith-

2l6

640 fully or honestly or faitlifull}' or otherwise per
formed the terms and conditions of the contract.
And denies that the defendant has failed and neg
lected to perform the conditions of the contract
mentioned in the plaintiff's complaint upon this
defendant's part to be performed ; and denies, that
he agreed under said contract to pay to plaintiff
the sum of $350 for his services and denies that
there remains due and unpaid under the contract
the sum of $4900, or any sum whatever ; and for
a further and separate answer to plaintiff's
complaint, the defendant avers that on the 23d
day of September, 1886, the History Company
mentioned in the agreement set forth in plaintiff's
complaint was duly incorporated under and by
virtue of the laws of the State of California,
under the name of the History Company, and
that ever since said date, the said History Com
pany has been and still is a corporation duly

642 organized, and by virtue of the laws of the State
of California, have been engaged in business in
the City of San Francisco, State of California ;
that immediately upon the incorporation of said
History Company, defendant transferred to the
said corporation, the properties mentioned, in said
agreement set forth in plaintiff's complaint, and
thereupon both plaintiff and defendant became
and ever since have been and now are stock-

217

643 holders of and in said corporation, arid after the
formation of said corporation carried on and con
ducted the business mentioned in said agreement,
and defendant has had nothing to do with the
business since that time, except as an officer of
the said corporation; that from the date of the
incorporation of the said History Company until
on or about the first day of July, 1892, plaintiff
acted in the capacity of general manager thereof,
but plaintiff has not at any time since the forma-
"" tion of said corporation, or at any other time
since the date of the said agreement, performed
for or rendered any services to the defendant
_ whatever ; and further answers that ever since on
or about the 1st day of July, 1892, said plaintiff
has been engaged in carrying on and conducting
for himself and other persons, and in opposition
to said History Company a business of the same
kind and character of that carried on and con-

6 A c ducted by the said History Company, and where
fore, the defendant having fully answered prays
to be dismissed with his costs.

That plaintiff has asked some instructions,
which I give as follows : The Jury are instructed
by the Court that the agreement set forth in the
complaint, and which has been read to you, is
admitted by the answer, and you should find the
facts accordingrlv.

2l8

646 You are instructed that the true intent and
meaning of said agreement was that the History
Company referred to therein, should be incorpor
ated under the laws of the State of California,
by the corporate name of the History Company.

That after the said incorporation of said Com
pany, it should conduct the business of publish
ing and selling the Historical Works of H. H.
Bancroft, and such other works, and conduct such
other business, as it might from time to time
*' determine upon.

That the said Bancroft at the time of the mak
ing of said agreement, did thereby sell and assign
to said Stone, one-tenth interest in the said His
tory Company, and the property of said Corn-
any, upon the following conditions : That the
said N. J. Stone should devote his whole time
and best energies as far as his health and strength
would permit, for the period of ten years, from
the date of said agreement, to the publication and
sale of the Historical Works of H. H. Bancroft,
and of such other works and business, and con
duct such other business as from time to time
might be taken up by the said History Company,
and that the said Stone should not enter in or
engage in, directly or indirectly, any other mer
cantile or manufacturing business, or in any other
business or occupation, which should in any wise

219

649 absorb his mind and strength, or interfere with
his interest in behalf of the History Company,
during the said term of ten years.

If you find from the evidence that plaintiff
engaged in any business or occupation, it must
appear it was of the character specified and pro
hibited in the agreement ; otherwise, it cannot be
regarded as a breach of said agreement, or an act

«^ o

prohibited thereby.

Upon the incorporation, plaintiff was entitled
to 10 per cent of the capital stock of the His
tory Company, upon the conditions mentioned,
and that in case of failure on the part of said
Stone to carry out the agreement in its full letter
and spirit, or any part thereof, then the said one-
tenth interest in said History 'Company was to
be forfeited, and to revert to the said H. H. Ban
croft.

There is no provision that said Stone should
forfeit his salary provided for in said agreement,
or, that he should forfeit anything more than the
one-tenth interest in said History Company, so
long as Stone performed the duties required of
him by the contract, he is entitled to such salary
of $350.

There are other conditions mentioned in said
agreement which are not involved in this suit,

220

652 and therefore, it is not necessary to call your
attention specially to them.

The contract referred to is a contract between
the plaintiff, N. J. Stone, and the defend
ant, H. H. Bancroft. It is not a contract
between Stone and the History Company, but a
contract between Stone and Bancroft, requiring
on the part of Stone a performance of the acts
above prescribed and none other

If you find from the evidence that the said N.
53 J. Stone performed the services required of him
by said contract, or that he was willing and ready
at the time, and has continued willing and ready,
and in the manner required by said agreement, to
perform said services, but was prevented from
doing so by the defendant, or under his directions,
you should find in favor of the plaintiff.

You are instructed that the plaintiff', if pre
vented from performing the services prescribed

6 "4 by" said contract, by the defendant, had the right
to engage in any occupation or business not pro
hibited by the terms of said contract, and to earn
as much money as he could, in such occupation or
business. The only effect of engaging in such
occupation or business would be, that whatever
he earned, should be deducted from the amount
of the salary claimed in this action.

221

655 There is testimony tending to show that the
plaintiff was not discharged from employment
under said agreement, either by the defendant or
the History Company. Under this state of facts,
the plaintiff was simply bound to hold himself in
readiness to perform such services as may have
been required of him by the said defendant or the
History Company. If you find from the evi-
, dence, that he was not required or allowed by
either the said History Company or the said
defendant to perform any services, but held him
self in readiness to execute the contract, in accord
ance with its terms, such readiness to perform is
equivalent to performance.

It is alleged in the complaint and admitted by
the defendant in his answer, that the salary sued
for by the plaintiff has not been paid ; that is to
say, it is admitted in the answer that the salary
has not been paid, since the first day of July,
1892. If you find from the evidence that the
defendant, either by himself or in conjunction
with others, prevented the plaintiff from discharg
ing the duties required of him under the said
contract, the defendant cannot complain of the
non-performance of acts or duties which he him
self prevented ; and the plaintiff in such case, and
in so far as he was prevented from performing by
the acts of the defendant, is entitled to the salary

222

658 mentioned in the complaint, the same as if all the
duties required by said contract had been per
formed.

The defendant asks some instructions, which I
give as follows:

If you find that the services for which the
plaintiff seeks to recover in this action, were
rendered for the History Company and not for
the defendant, then, I instruct you that he can
not recover against the defendant.

MR. REDDY: To that instruction we object as
not being within the pleadings.

MR. MoCuTOHEN : We will take our excep
tions afterwards.

This is an action to recover for services ren
dered by the plaintiff, and in order to find for the
plaintiff you must find that he actually rendered
the services for which he sues, or was prevented
from so doing by the defendant, or by his direc-
660 tions. In this case it is not necessary to show
that he was prevented from performing services
by some person other than the defendant, or by his
directions. If you find that the plaintiff was not
dismissed or discharged from the employment, but
that he quit such employment on account of the
treatment to which he was subjected from others,
and not by the defendant, then I instruct you
that this was an abandonment of the employment

223

66 1 by him, and that he cannot recover except for
services rendered before such abandonment.

This is an action to recover for services claimed
to have been rendered under that contract, and it
is therefore necessary, in order to find for the
plaintiff, to find that he actually rendered the
services, or was prevented from so doing by the
defendant or under his direction.

I instruct you that the defendant is not bound
by any declaration of any officer of the History
Company, unless such declaration was made by
him or by his direction.

If you find from the evidence that after the
making of the agreement set out in the com
plaint, the plaintiff entered into, or engaged in,
directly or indirectly, any other mercantile or
manufacturing business which did in any way ab
sorb his mind and strength, then I instruct you
that when he so entered in or engaged in such
66- business he violated the agreement.

The Court instructs the jury as a matter of law,
that where two parties enter into a lawful con
tract upon sufficient consideration, and one of the
parties is ready and willing to perform and makes
preparation and offers to perform on his part, but
is prevented from performing by the other party,
the party so ready and willing to perform can re
cover all damages suffered by him by reason of
the default of the other party.

224

664 r^^ie Court instructs the jury that to entitle the
plaintiff to recover in this case, he must prove by
a preponderance of evidence the contract substan
tially as alleged in the declaration, and also the
breach of the contract as therein alleged and
charged for him, the plaintiff, to recover, and un
less he has done so, the jury should find for the
defendant.

Before any party to an obligation can require
another party to perform any act under it, he
^ must fulfill all conditions precedent thereto im
posed upon himself and must be able and offer to
fulfill all conditions concurrent so imposed upon
him on the like fulfillment of the other party.

When one party offers to fulfill his part in a
concurrent obligation, and the other refuses or
neglects to perform his part, he who is ready and
offers has fulfilled his engagement, and may
maintain on action for the default of the other.
555 An employment, even for a specified term, may
be terminated at any time, by the employer in
case of any willful breach of duty by an employee,
in the course of employment, or in case of hab
itual neglect of his duty, or continued incapacity
to perform it.

An etnyloyment, even fora specified term, may
be terminated by the employee at any time, in
case of any wilful or permanent breach of the ob-

225

667 ligations of his employer to him as an employee.

An employee who quits the service of his em
ployer for good cause, is entitled to such propor
tion of the compensation which would become
due in case of full performance, as the services
which he had already rendered bear to the ser
vices which he was to render as full performance.

For the breach of an obligation arising from
contract, the measure of damages, is the amount
which will compensate the party aggrieved for all
the detriment proximately caused thereby, or
which in the ordinary course of things, would be
likely to result therefrom.

The detriment caused by the breach of an
obligation to pay money only, is deemed to be the
amount due by the terms of the obligation,
with interest thereon.

The Jury are the judges of the effect and value
of evidence addressed to them ; but this power
669 °f Judgmg °f the effect of evidence is not arbi
trary, but to be exercised with legal discretion
and in subordination of the rules of evidence.

The Jury are not bound to decide in conform
ity with the declarations of any number of wit
nesses which do not produce conviction in their
minds, against a less number, or against a pre
sumption or any other evidence satisfying their
minds.

226

670 A witness who willfully testifies falsely as to
one fact is to be distrusted in other parts of his
testimony. If you find that a witness has delib
erately testified falsely in one part of his testi
mony in this case, you have the right to reject
the whole of the testimony of that witness,
which is not shown by other evidence in the case
to be true.

In civil cases the affirmative of the issue must
be proved, and when the evidence is contradic-
71 tory, the decision must be made according to the
preponderance of evidence.

Three-fourths of the Jury may agree upon a
verdict.

The form of your verdict will be, '* We, the

Jury, find for the plaintiff in the sum of

dollars, naming the amount.

Or, " We, the Jury, find for the defendant."
The verdict to be signed by the foreman.

672

Defendant duly excepted to the following por
tion of said charge, to wit :
Exception No. 38.

" If you find from the evidence that plaintiff
engaged in any business or occupation, it must
appear it was of the character specified and pro
hibited in the agreement otherwise, it cannot be

673 regarded as a breach of said agreement, or an act
prohibited thereby."

Defendant duly excepted to the following por
tion of said charge, to wit :
Exception No. 39.

" If you find from the evidence that the said
N. J. Stone performed the services required of
him by said contract, or that he was willing and
ready at the time, and continued willing and
ready and in the manner required by said
'* agreement, to perform said services, but was
prevented from doing so by the defendant, or
under his directions, you should find in favor of
the plaintiff."

Defendant duly excepted to the following por
tion of said charge, to wit :

Exception No. 40.

" You are instructed that the plaintiff if pre
vented from performing the services prescribed by
675 said contract by the defendant, had the right to
engage in any occupation or business not prohib
ited by the terms of said contract, and to earn
as much money as he could in such occupation or
business. The only effect of engaging in such
occupation or business would be, that whatever
he earned, should be deducted from the amount
of the salary claimed in this action."

228

676 Defendant duly excepted to the following por
tion of said charge, to wit :
Exception No. 41.

" There is testimony tending to show that the
plaintiff was not discharged from employment
under said agreement, either by the defendant or
by the History Company. Under this state of
facts, the plaintiff was simply bound to hold him
self in readiness to perform such services as may
have been required of him by the said defendant or
77 the History Company. If you findTrom the evi
dence, that he was not required or allowed by
either the said History Company or the said
defendant to perform any services, but held him
self in readiness to execute the contract, in accord
ance with its terms, such readiness to perform is
equivalent to performance."

Defendant duly excepted to the following por
tion of said charge, to wit :

678 " It is alleged in the complaint and admitted by
the defendant in his answer, that the salary sued
for by the plaintiff has not been paid ; that is to
say, it is admitted in the answer that the salary
has not been paid since the first day of July*
1892. If you find from the evidence that the
defendant, either by himself or in conjunction
with others, prevented the plaintiff from dis
charging the duties required of him under the

229

679 said contract, the defendant cannot complain of
the non-performance of acts or duties which he
himself prevented ; and the plaintiff in such case,
and in so far as he was prevented from perform
ing by the acts of the defendant, is entitled to
the salary mentioned in the complaint, the same
as if all the duties required by said contract had
been performed."
Exception No. 42.

Defendant duty excepted to the following por
tion of said charge, to wit:

" The Court instructs the jury as a matter of
law where two parties enter into a lawful con
tract upon sufficient consideration, and one of the
parties is ready and willing to perform and makes
preparation and offers to perform on his part, but
is prevented from performing by the other party,
the party so ready and willing to perform can re
cover all damages suffered by him by reason of
68 1 the default of the other party."

Exception No. 43.

Defendant duly excepted to the following por
tion of said charge, to wit:

"The Court instructs the jury that to entitle
the plaintiff to recover in this case, he must prove
by a preponderence of evidence the contract sub
stantially as alleged in the declaration, and also
the breach of the contract as therein alleged and

230

682 charged for him, the plaintiff to recover, and un
less he has done so, the jury should find for the
defendant."
Exception No. 44.

Defendant duly excepted to the following por
tion of said charge to wit:

" Before any party to an obligation can require
another party to perform any act under it, he
must fulfill all conditions precedent thereto im
posed upon himself, and must be able and offer
to fulfill all conditions concurrent so imposed upon
him on the like fulfillment by the other party.

Exception No 45

Defendant duly excepted to the following por
tion of said charge, to wit:

"When one party offers to fulfill his part in a

concurrent obligation, and the other refuses or

neglects to perform his part, he who is ready and

offers has fulfilled his engagement, and may main-

684 tain an action for the default of the other."

Exception No. 46.

Defendant duly excepted to the following por
tion of said charge, to wit:

" For the breach of an obligation arising from
contract, the measure of damages is the amount
which will compensate the party aggrieved for all
the detriment proximately caused thereby, or

231

685 which, in the ordinary course of things, would be
likely to result therefrom. "
Exception No. 47.

Defendant duly excepted to the following por
tion of said charge, to wit:

" The detriment caused by the breach of an ob
ligation to pay money only, is Deemed to be the
amount due by the terms of the obligation, with
interest thereon."

Exception No. 48.

686

Defendant requested the Court to charge the
jury as follows:

~" If you find from the evidence that after the
execution of the written agreement set out in the
complaint, a corporation called the History Com
pany was formed; that defendant turned over or
transferred to that corporation the property men-
687 tioned in the agreement, and caused to be issued
and delivered to the plaintiff, certificates repre
senting one-tenth of the capital stock, then I in
struct you that said agreement was fully per
formed by the defendant."

Defendant requested the Court to charge the
jury as follows:

"You are instructed that the written agree
ment set forth in the complaint does not provide

232

688 that the salary of plaintiff shall be paid by defen
dant."

The Court refused to give such instruction, to
which refusal defendant duly excepted.
Exception No. 49.

Defendant requested the Court to charge the
jury as follows:

" If the corporation, the History Company,
was formed and the property mentioned in the
_ agreement turned over to it, and one-tenth of the
stock issued and delivered to plaintiff, and plain
tiff acted as and became the manager of the cor
poration, then I instruct that if plaintiff has any
claim it is against the History Company, and not
against defendant.''

" Not warranted by the pleadings, not given.
Jos. P. Jones, Judge."

The Court refused to give such instruction, to
which refusal defendant duly excepted.
690 Exception No. 50.

Defendant requested the Court to charge the
jury as follows:

" This is an action to recover for services ren
dered by plaintiff, and in order to find for the
plaintiff, you must find that he actually rendered
the services for which he sues. In this action it
is not enough for him to show that he was pre
vented from performing the service."

233

691 The Court refused to give such instruction, to
which ruling defendant duly excepted, but modi
fied said instruction so as to make it read as fol
lows: " This is an action to recover for services
rendered by plaintiff, and in order to find for the
plaintiff, you must find that he actually rendered
the services for which he sues, or was prevented
from so doing by the defendant, or by his direc
tion. In this action it is not enough for him to
show that he was prevented from performing the
services by some other person other than defend
ant, or by his direction," and as so modified gave
said instruction to the jury.
Exception No. 51.

- Defendant requested the Court to charge the
Jury as follows :

" If you find that plaintiff was not dismissed
or discharged from the employment, but that he
quit said employment on account of the treat-
693 ment to which he was subjected, then I instruct
you that this was an abandonment of the employ
ment by him and that he cannot recover except
for services rendered before such abandonment."

The Court refused to give such instruction to
which refusal defendant duly excepted, but mod
ified said instruction so as to make it read as fol
lows : "If you find that plaintiff was not dis
missed or discharged from the employment, but

234

694 that he quit said employment on account of the
treatment to which he was subjected from others
and not by the defendant, then I instruct you
that this was an abandonment of the employment
by him and that he cannot recover except for
services rendered before such abandonment," and
as so modified gave said instruction to the Jury.
Exception No. 52.

Defendant requested the Court to charge Jury
as follows :

" This is not an action to recover damages for

breach of the contract set out in the complaint
it is to recover for services claimed to have been
rendered under that contract and it is therefore
necessary in order to find for plaintiff, to find
that he actually rendered the service."

The Court refused to give such instruction, to
which refusal defendant duly excepted, but mod
ified said instruction so as to make it read as fol-
696 l°ws : '' This is an action to recover for services
claimed to have been rendered under that con
tract and it is therefore necessary in order to find
for plaintiff, to find that he actually rendered the
service, or was prevented from so doing by the
defendant, or under his direction," and as so mod
ified gave said instruction to the Jury.
Exception No. 53.

Defendant requested the Court to charge the
Jury as follows :

235

697 " The remedy of an employee who is prevented
from performing service is not an action for wages
but he should sue for damages for the breach of
his contract."

The Court refused to give such instruction, to
which refusal defendant duly excepted.
Exception No. 54.

Defendant requested the Court to charge the
Jury as follows :

" I instruct you that defendant is not bound by
any declaration by any officer of the History
Company unless such declaration was made by
his direction."

The Court refused to give such instruction, to
which refusal defendant duly excepted, but mod
ified said instruction so as to make it read as fol
lows : "I instruct you that defendant is not
bound by any declaration by any officer of the His
tory Company, unless such declaration was made
699 by him or by his direction," and as so modified
gave said instruction to the Jury.

Exception No. 55.

Defendant requested the Court to charge the
Jury as follows :

"If you find from the evidence that after the
making of the agreement set out in the com
plaint, the plaintiff entered into or engaged in,
directly or indirectly, any other mercantile or

236

yoo manufacturing business, then I instruct you that
when he so entered into or engaged in such busi
ness, he violated the agreement."

The Court refused to give such instruction, to
which refusal defendant duly excepted, but modi
fied said instruction so as to make it read as fol
lows : " If you find from the evidence that after
the making of the agreement set out in the com
plaint, the plaintiff entered into or engaged in,
directly or indirectly, any other mercantile or
' manufacturing business, which did in anywise
absorb his mind and strength, then I instruct you
that when he so entered into or engaged in such
business, he violated the agreement," and as modi
fied gave said instruction to the Jury.

Exception No. 56.

Thereupon, the jury retired, and returned and
rendered a verdict in favor of plaintiff and against
the defendant for the sum of forty-nine hundred
702 dollars.

Thereafter, and within the time allowed by law,
the defendant duly served upon plaintiff, and filed
in this Court, his Notice of Intention to Move
for a New Trial, of which said notice, the follow
ing is a copy, to wit:

In the Superior Court in and for the County of
Contra Costa, State of California.

237

703 N. J. STONE,

Plaintiff.

vs.

H. H. BANCKOFT,

Defendant.

To the plaintiff above named, and Messrs.
764 Reddy, Campbell & Metson, his attorneys:

You will please take notice that the defendant
intends to and will move this Honorable Court
to set aside and vacate the verdict and decision
heretofore rendered and entered in the above en"
titled action, and to grant a new trial thereof,
upon the following grounds, to wit:

First — Insufficiency of the evidence to justify
the verdict of the jury.

Second — That said verdict is against law.
' 5 Third — Errors in law occuring at the trial and
excepted to by the defendant.

Said motion will be made upon a statement of
the case hereafter to be prepared and served upon
you.

Dated March 30th, 1894.

E. J. McCUTCHEN,
Attorney for Defendant.

238

706 And the defendant now specifies the following
particulars in which the evidence was and is in
sufficient to justify the verdict of the Jury, and
the following particulars in which said verdict
was and is against law, and assigns the following
errors in law occurring at the trial of said action,

O *

and excepted to by the defendant.

ASSIGNMENT OF ERRORS.

707 j

Particulars in which the evidence was insuffi
cient to justify the verdict of the jury.

The evidence was insufficient to justify the ver
dict of the jury in this:

(a.) That the evidence did not show that
plaintiff had performed any services under the
contract set forth in his complaint, between the
first day of July, 1892, and the first day of Sep-

708 tember, 1893.

(6.) The evidence did not show that plaintiff
had performed ari}T services under said contract for
the defendant.

(c.) The evidence showed that plaintiff did not
perform any service for defendant under said con
tract, or under any other contract.

(d. ) The evidence showed that all of the ser
vice which plaintiff performed under that contract,

239

709 and for which he seeks to recover in this action,
was performed for the History Company.

(e.) The evidence showed that said contract
had been fully performed by the defendant.

(/.) The evidence showed that the defendant
had not failed to do anything which he had under
taken or agreed by the terms of said contract
to do.

(g.) The evidence did not show that defend
ant agreed to pay plaintiff the salary mentioned
' and referred to in said agreement.

(Ji.) The evidence did not show that plaintiff

was entitled to receive said salary from defendant.

(i.) The evidence showed that plaintiff was

not entitled to receive said salary from defendant.

(j.) The evidence showed that defendant did

not agree to pay said salary to plaintiff.

(k.) The evidence showed that plaintiff did not

perform the service for which he seeks a recov-

711 erv lu ^s acti°n> but that he voluntarily left and

abandoned the service of the History Company

in the year 1892.

(I.) The evidence showed that during the time
for which plaintiff seeks to recover from the
defendant in this action for services alleged to
have been performed under the agreement set
forth in his complaint, he had engaged and was

240

712 engaged in carrying on and conducting another
mercantile and manufacturing business.

(m.) The evidence showed that the plaintiff
violated the agreement set forth in his complaint,
in the month of December, 1892, by engaging
in a mercantile and manufacturing business other
than that of the History Company.

(n.) The evidence showed that the plaintiff
violated the agreement set forth in his complaint,
by engaging, during the period between the
' I^ months of May and September, 1893, in a mer
cantile and manufacturing business, other than
the business of the History Company.

(o.) The evidence showed that during two or
three months in the year 1893, the plaintiff vio
lated the agreement set forth in his complaint,
by engaging in a mercantile and manufacturing
business other than the business of the History
Company.

(p.) The evidence did not show that plaintiff
had faithfully or honestly performed the contract
set forth in his complaint, but, on the contrary,
the evidence showed that the plaintiff violated
said contract by engaging for a period of two or
three months, during the year 1893, in a mercan
tile and manufacturing business other than the
business of the History Company, to wit : by
forming a co-partnership with one Miller, for the

241

715 publication of a book and for the manufacture
and sale of medical remedies, and by actually
engaging in and carrying on said business.

(q.) The evidence showed that plaintiff did
not honestly or faithfully perform all or any of
the terms or conditions of said contract set forth
in his complaint.

(r.) The evidence did not show that plaintiff
performed all the terms and conditions of said
contract, but on the contrary, the evidence showed
71 * that plaintiff did not perform any service what
ever under said contract after the 31st day of
December, 1892.

(s.) The evidence did not show that defend
ant agreed to pay to plaintiff the salary stipu
lated in said contract, but on the contrary, the
evidence showed that said salary was to be paid
by the History Company and that both plaintiff'
and defendant understood that defendant was not
to pay and was not required to pay any portion of
said salary.

II.

Defendant specifies the following particulars in
which said verdict was against law, to wit :

(a.) The Court instructed the jury that if the
services for which plaintiff sought to recover in
said action, were rendered for the History Com
pany and not for the defendant, then the plaintiff

242

718 could not recover against the defendant, and that
all the testimony showed and the plaintiff him
self admitted and testified that the services for
which he sought to recover in said action, were
performed for the History Company, and not for
the defendant.

III.

And the defendant specifies and assigns the
following errors in law occurring at the trial of

719 said action and excepted to by defendant, to wit:

First — The Court erred in overruling the objec
tion of defendant to the following question pro
pounded to the witness, N. J. Stone: State the
circumstances ?

Second — The Court erred in overruling the ob
jection of defendant to the following question pro
pounded to the witness, N. J. Stone: Did you
make any contract with him at that time?

Third — The Court erred in overruling the ob-

' jection of defendant to the following question

propounded to the witness, N. J. Stone: During

the time that you were in the management of the

sale of the History, etc., were any dividends paid?

Fourth — The Court erred in overruling the ob
jection of defendant to the following question pro
pounded to the witness, N. J. Stone: State
when, if ever, any one interfered with you, any

243

721 one who had authority with the company, inter
fered with your management of the business ?

Fifth — The Court erred in overruling the ob
jection of defendant to the following question
propounded to the witness, N. J. Stone: What
was his conduct there and what was the result of
it?

Sixth — The Court erred in overruling the ob
jection of defendant to the following question
propounded to the witness, N. J. Stone: When

722

you made application for it, what response did

you receive ?

Seventh — The Court erred in denying the mo
tion of defendant to strike out the following
answer given by the witness, N. J. Stone: The
boy in the office was forbidden to keep any letters
for me.

Eighth — The Court erred in overruling the ob
jection of defendant to the following question
propounded to the witness, N. J. Stone: State
what occurred ?

Ninth — The Court erred in overruling the ob
jection of defendant to the following question
propounded to the witness, N. J. Stone: What
was the answer ?

Tenth — The Court erred in overruling the ob
jection of defendant to. the following question
propounded to the witness, N. J. Stone: For
how much ?

244

724 Eleventh — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: Was
there any money in the treasury at the time that
assessment was levied ?

Twelfth — The Court erred in overruling the ob
jection of defendant to the following question
propounded to the witness, N. J. Stone: They
proceeded so far with the assessment as to adver
tise your stock for sale under that proceeding,
?25 didn't they ?

Thirteenth — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: What
reply did you get from Morrison when you ap
plied to him for instructions as to what you
should do ?

Fourteenth — The Court erred in overruling the
objection of defendant to the following question
726 ProPounded to the witness, N. J. Stone : What
was the reply of Dorland ?

Fifteenth — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: To what
effect; what did you say to him ?

Sixteenth — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: What

245

727 was the reply made by Dorland on that occasion ?

Seventeenth — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: State,
if you know of your own knowledge, of defend
ant being present with yourself and Dorland and
others, and his giving instructions for actions, and
it being obeyed by Dorland ?

Eighteenth — The Court erred in overruling the
objection of defendant to the introduction of ex-
' tracts from the book, " Literary Industries "
offered b}^ plaintiff.

Nineteenth — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: State
whether you relied upon your own judgment, or
the judgment of your counsel in signing the
document containing the words about the partner
ship.

Twentieth — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: State
the reasons why you signed those papers in full ?
Twenty-first — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone: State
whether they afterwards advised you that was a
mistake ?

246

730 Twenty-second -The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, N. J. Stone:
Why did you bring this suit, knowing that you
had commenced two suits against the History
Company, for a portion of the money involved in
this?

Twenty-third — The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, N. J. Stone:
" Why did you vote to take your name off the
letter-heads if it was disagreeable to you ?

Tiuenty-fourth — The Court erred in denying the
motion of defendant to strike out the testimony
of the witness, D. R. Sessions.

Twenty -fifth- -The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, H. B. Hambly: Do
you remember about how many hours a day he
attended in his office ?

Twenty-sixth — The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, W. H. Hartwell:
State, if you know, if defendant ever counter
manded any of Mr. Stone's orders in the business ?

Twenty-seventh— The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, Jose M. Trigo:

247

733 Will you state the subject of the conversation,
or conversations, upon that particular subject ?

Twenty-eighth— The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, Jose M. Trigo,
Did you get a lawyer; I ask if you did, in pursu
ance to Mr. Bancroft's suggestion or instruction,
get a lawyer to bring that suit ?

Twenty-ninth— The Court erred in overruling

the objection of defendant to the following ques-

'34 tion propounded to the witness, Jose M. Trigo:

After the consultation with Mr. Mitchell, did you

report to Mr. Bancroft ?

Thirtieth— The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, Jose M. Trigo; What
did you report to Mr. Bancroft ?

Thirty -first— The Court erred in overruling the
objection of defendant to the following ques-
tion propounded to the witness, Jose M. Trigo:
State all that was said in reference to the books,
and if anything was said concerning Stone ?

Thirty-second— The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, Jose M. Trigo:
State whether anything was said concerning Mr.
Stone, other than what you have stated, after your
arrival in San Francisco, with reference to getting

248

736 him out of the business, or anything of that char
acter ?

Thirty-third— The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, Jose M. Trigo: What
was that conversation ?

Thirty-fourth— The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, Jose M. Trigo:
State whether you were informed by defendant as
'*' to whether any business of the History Company
had been transferred to the California Book Com
pany ?

Thirty-fifth — The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, Jose M. Trigo :
Who caused that book to be written — Resources
and Probabilities of Mexico ?

Thirty-Sixth- The Court erred in overruling the
718 °bjection of defendant to the offering in evidence
of a letter written by the witness, George H.
Morrison to defendant.

Thirty -Seventh — The Court erred in overruling
the objection of defendant to the fol
lowing question propounded to the witness,
George H. Morrison : I will ask you if it is not
the fact, that while Mr. Boyns was an employee
of the History Company, between September,

249

739 1889> and March, 1890, at the History Com
pany's office, in the City and County of San
Francisco, you did not point to Mr. Stone and
say to him (Boyns), " That man is a snake in the
grass, he is a bad man, look out for him, have
nothing to do with him " or words to that effect ?
Thirty-eighth — The Court erred in overruling
the objection of defendant to the following ques
tion propounded to the witness, George H. Mor
rison : Do you remember having said to Mr. S.

?* B. Moore, at the place I have named in the His
tory Company's office, along about July, 1889,
that Mr. Stone just the same as robbed him by
discriminating against him in the allowance of
commission, and that it was just the same as tak
ing money out of his pocket, or words to that
effect ?

Thirty -ninth — The Court erred in overruling the
objection of defendant to the following question

741 propounded to the witness, W. C. Boyns : State
whether you had any conversation with Mr. Mor
rison in the month of September, or at any other
time, between the month of September, 1889, and
March, 1890, have a conversation in which Mor
rison said, pointing to Stone, " That man is a
snake in the grass, a bad man," or words to that
effect ?

250

743 Fortieth — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, S. B. Moore : State
whether or not you heard Mr. Morrison, at the
History Company's office, in the City and County
of San Francisco, in the month of September,
1889, or at any other time between that and the
first of March of the following year, say to you
that Mr. Stone had as good as robbed you in dis
criminating against you in commission, and that

7A1

it was equivalent to robbery, or words to that
effect ?

Forty- first — The Court erred in overruling the
objection of defendant to the following question
propounded to the witness, N. J. Stone : State
whether you paid that to him, or not ?

Forty-second — The Court erred in refusing to
submit to the jury the following special issue,
requested by defendant : Were the services
claimed to have been performed by the plaintiff
rendered for the History Company, or for the
defendant.

Forty-third — The Court erred in giving to the
jury the following instruction, to wit :

" If you find from the evidence that plaintiff
engaged in any business or occupation, it must
appear it was of the character specified and pro
hibited in the agreement ; otherwise, it cannot be

25'

745 regarded as a breach of said agreement, or an act
prohibited thereby."

Forty-fourth- The Court erred in giving to the
jury the following instruction, to wit :

" If you find from the evidence that the said
N. J. Stone performed the services required of
him by said contract, or that he was willing and
ready at the time, and has continued willing and
ready, and in the manner required by said agree
ment, to perform said services, but was prevented
from doing so by the defendant, or under his
directions, you should, find in favor of the
plaintiff."

Forty-fifth — The Court erred in giving to the
jury the following instruction, to wit :

" You are instructed that the plaintiff if pre
vented from performing the services prescribed by
said contract by the defendant, had the right to
engage in any occupation or business not prohib-
ited by the terms of said contract, and to earn as
much money as he could in such occupation or
business. The only effect of engaging in such
occupation or business would be, that whatever
he earned, should be deducted from the amount
of the salary claimed in this action."

Forty-sixth— The Court erred in giving to the
jury the following instruction, to wit :

252

748 " There is testimony tending to show that the
plaintiff was not discharged from employment
under said agreement, either by the defendant
or by the History Company. Under this state
of facts, the plaintiff was simply bound to hold
himself in readiness to perform such services as
may have been required of him by the said de
fendant or the History Company. If you find
from the evidence, that he was not required or
allowed by either the said History Company or

' the said defendant to perform any services, but
held himself in readiness to execute the contract,
in accordance with its terms, such readiness to
perform is equivalent to performance."

Forty-seventh— The Court erred in giving to the
jury the following instruction, to wit:

" It is alleged in the complaint and admitted
by the defendant in his answer, that the salary
sued for by the plaintiff has not been paid; that is

« co to say, it is admitted in the answer that the sal
ary has not been paid since the first day of July,
1892. If you find from the evidence that the de
fendant, either by himself or in conjunction with
others, prevented the plaintiff from discharging
the duties required of him under the said contract,
the defendant cannot complain of the non-per
formance of acts or duties which he himself pre
vented; and the plaintiff in such case, and in so

253

751 far as he was prevented from performing by the
acts of the defendant, is entitled to the salary
mentioned in the complaint, the same as if all the
duties required by said contract had been per
formed."

Forty '-eight— -The Court erred in giving to the
jury the following instruction, to wit:

" The Court instructs the jury as a matter of
law, that where two parties enter into a lawful

contract upon sufficient consideration, and one of

7 ^2

/0 the parties is ready and willing to perform and

makes preparation and offers to perform on his
part, but is prevented from performing by the
other party, the party so ready and willing to
perform can recover all damages suffered by him
by reason of the default of the other party."

forty-ninth— The Court erred in giving to the
jury the following instruction, to wit:

" The Court instructs the jury that to entitle
the plaintiff to recover in this case, he must prove
by a preponderence of evidence the contract sub
stantially as alleged in the declaration, and also
the breach of the contract as therein alleged and
charged, and unless he has done so, the jury
should find for the defendant."

Fiftieth— The Court erred in giving to the jury
the following instruction, to wit:

254

754 " Before any party to an obligation can require
another party to perform any act under it, he
must fulfill all conditions precedent thereto im
posed upon himself, and must be able and offer to
fulfill all conditions concurrent so imposed upon
him on the like fulfillment by the other party."

Fifty-first- --The Court erred in giving to the
jury the following instruction, to wit :

" When one party offers to fulfill his part in a

concurrent obligation, and the other refuses or

7SS

neglects to perform his part, he who is ready and

offers has fulfilled his engagement, and may main
tain an action for the default of the other."

Fifty-second — The Court erred in giving to the
jury the following instruction, to wit:

"For the breach of an obligation arising from
contract, the measure of damages is the amount
which will compensate the party aggrieved for all
the detriment proximately caused thereby, or
which, in the ordinary course of things, would be
likely to result therefrom."

Fifty-third — The Court erred in giving to the
jury the following instruction, to wit:

"The detriment caused by the breach of an
obligation to pay money only, is deemed to be the
amount due by the terms of the obligation, with
interest thereon."

255

757 Fifty-fourth — The Court erred in refusing to
give to the jury the following instruction
requested by defendant, to wit :

"If you find from the evidence that after the
execution of the written agreement set out in the
complaint, a corporation called the History Com
pany was formed ; that defendant turned over or
transferred to that corporation the property men
tioned in the agreement and caused to be issued
and delivered to the plaintiff, certificates repre-

'* senting one-tenth of the capital stock, then I
instruct you that said agreement was fully per
formed by the defendant."

Fifty-fifth— The Court erred in refusing to give
to the jury the following instruction requested by
defendant, to wit :

" You are instructed that the written agree
ment set forth in the complaint does not provide
that the salary of plaintiff shall be paid by defend-

759 ant"

Fifty-sixth — The Court erred in refusing to

give to the jury the following instruction,
requested by defendant, to wit :

" If the corporation, the History Company was
formed and the property mentioned in the agree
ment turned over to it, and one-tenth of the stock
issued and delivered to plaintiff, and plaintiff
acted as and became the manager of the corpora-

760 tion, then I instruct you that if plaintiff has any
claim, it is against the History Company and not
against defendant."

Fifty-seventh— The Court erred in refusing to
give to the jury the following instruction
requested by defendant, to wit :

"This is an action to recover for services ren
dered by plaintiff and in order to find for the
plaintiff, you must find that he actually rendered

the services for which he sues. In this action it

761

' is not enough for him to show that he was pre
vented from performing the service."

Fifty-eighth — The Court erred in refusing to
give to the jury the following instruction
requested by defendant, to wit :

"If you find that plaintiff was not dismissed
or discharged from the employment, but that he
quit said employment on account of the treat
ment to which he was subjected, then I instruct
762 vou ^ia^ tf1*8 was an abandonment of the employ
ment by him and that he cannot recover except
for services rendered before such abandonment."

Fifty -ninth— The Court erred in refusing to
give to the jury the following instruction
requested by defendant, to wit :

" This is not an action to recover damages for

breach of the contract set out in the complaint,
it is to recover for services claimed to have been

257

763 rendered under that contract and it is therefore
necessary in order to find for plaintiff, to find that
he actually rendered the service."

Sixtieth — The Court erred in refusing to give
to the jury the following instruction requested by
defendant, to wit :

" The remedy of an employee who is prevented
from performing service is not an action for wages
but he should sue for damages for the breach of
his contract."

' ^ Sixty-first — The Court erred in refusing to
give to the jury the following instruction
requested by defendant, to wit :

" I instruct you that defendant is not bound
by any declaration by any officer of the History
Company unless such declaration was made by
his direction."

Sixty-second — The Court erred in refusing to
give to the jury the following instruction
76^ requested by defendant, to wit :

" If you find from the evidence that after the
making of the agreement set out in the com
plaint, the plaintiff entered into or engaged in,
directly or indirectly, any other mercantile or
manufacturing business then I instruct you that
when he so entered into or engaged in such busi
ness, he violated the agreement.

E. J. McCUTCHEN,
Attorney for Defendant.

766 STIPULATION.

It is hereby stipulated that the above and fore
going be settled and allowed as the statement
of the case on motion for new trial in the above
entitled action.

Dated November 27, 1894.
REDDY, CAMPBELL & METSON,

Attorneys for Plaintiff.
E. J. MoCUTCHEN,
Attorney for Defendant.

CERTIFICATE OF JUDGE.

The foregoing having been agreed to by the
respective parties to the above entitled action, as
the statement of the case on motion for new
trial, the same is hereby settled and allowed.

Dated January 10, 1895.

Jos. P. JONES, Judge.

[Endorsed:] Filed this 10th day of January,
1895.

F. L. GLASS, Clerk.

ORDER DENYING MOTION FOR NEW
TRIAL.

[Title of Court and Cause.]

MONDAY, February 18, 1895
Court met at 10 o'clock A. M.

259

769 Present, Hon. Jos. P. Jones, Judge ; R. R.
Veale, Sheriff; F. L. Glass, Clerk.

On reading the stipulation of counsel on file
herein the motion of defendant for a new trial of
this cause is submitted to the Court for decision
without argument, and the Court being fully ad
vised in the premises it is ordered that the said
motion for a new trial be and the same is hereby
denied.

770

NOTICE OF APPEAL.

(Title of Court and Cause.)

You will please take notice that the defendant
in the above entitled action hereby appeals to the
Supreme Court of the State of California, from
the judgment therein entered in the said Superior
Court on the 24th day of March, 1894, in favor
of the plaintiff in said action and against said de-
77 * fendant, and from the whole thereof; and also
from the order denying said defendant's motion
for new trial, made and entered in the minutes of
said Court the 18th day of February, 1895.
Dated, February 28, 1895.

E. J. McCUTCHEN,
Attorney for Defendant.

26o

•772 To the Clerk of the said Superior Court, and to
the plaintiff in the above entitled action, and
Reddy, Campbell & Metson, his attorneys.

[Endorsed:] Service of a copy of the within
. JJotice of Appeal is hereby admitted this 28th
day of February, 1895.

REDDY, CAMPBELL & METSON,

Attorneys- for Plaintiff.
Filed February 28, 1895.

F. L. GLASS, Clerk.

773

STIPULATION.

We, the undersigned, the attorneys for the re
spective parties herein, do hereby stipulate that
the above and foregoing are correct copies of the
Judgment Roll and Statement of the Case, used
on the hearing of the Motion for New Trial and

Notice of Appeal in the above-entitled action,

774

and on file in said cause, and of the order denying

defendant's motion for new trial made and entered
in the minutes of the Court on the 18th day of
February, 1895; that the same are true and cor
rect, and that they shall constitute the transcript
on appeal herein.

We further certify that a sufficient undertaking
on appeal in due form of law was on the 4th day

26l

775 of March, 1895, duly filed in said cause in the
office of the Clerk o£ said Court.

Dated, June 7^1895. j

Attorneys for Plaintiff and Respondent.

Attorney for Defendant and Appellant. ]

Service of a copy of the within Transcript on

Appeal is hereby admitted this

day of May, 1895.

Attorneys for Respondent.

San Francisco. No. 171.

IN THE

^TT

OUl LV

COURT

OK THK

STATE OF CALIFORNIA.

N. J. STONE,

Plaintiff' and Respondent,

ys.

H. H. BANCROFT,

Defendant and Appellant.

Appellant's Points and Authorities,

EDWARD J. McCuTCHEN,

Attorney for Appellant.
REDDY, CAMPBELL & METSON,

Attorneys for Respondent.

Filed this... day of November, A. D. 1895.

T. H. WARD, Clerk,

Deputy Clerk.

THE SUPREME COURT

STATE OF CALIFORNIA.

N. J. STONE,

Plaintiff and Respondent,

vs.
H. H. BANCROFT,

Defendant and Appellant.

APPELLANT'S POINTS AND AUTHORITIES.

The action is to recover for services claimed to
have been rendered by plaintiff for defendant.

The complaint alleges the execution by plaintiff
and defendant of the agreement hereinafter set
forth; that plaintiff has honestly and faithfully
performed all of the terms and conditions thereof
on his part; "that defendant has failed and neg
lected to perform the conditions upon his part to
be performed, and has failed, neglected and re
fused to pay or cause to be paid to plaintiff the
* salary mentioned in said agreement, at the rate of
three hundred and fifty dollars per month, since
the 1st day of July, 1892."

The answer denies that plaintiff has performed,

or that defendant has failed to perform, the con
tract, and avers that defendant has performed all
of the conditions on his part to be performed;
admits that defendant has not paid the salary men
tioned in the contract, and avers that he is under
no obligation to pay it. The answei further avers
that the History Company mentioned in the agree
ment was incorporated under the laws of Califor
nia on the 23d day of September, 1886, and that
immediately after its incorporation defendant
transferred to it all of the property mentioned in
the agreement; that from the date of its incorpor
ation said History Company has carried on and
conducted the business mentioned in the agree
ment, and defendant has had nothing to do with
said business except as an officer of said corpora
tion; that from the date of incorporation until
the 1st day of July, 1892, the plaintiff acted in
the capacity of general manager of the company,
but that he has not at any time since the date of
the agreement performed for or rendered to de
fendant or to said corporation any service what
ever. The answer further avers, that during the
time for which the plaintiff seeks to recover com
pensation he was engaged in carrying on and con
ducting for himself and other persons, and in
opposition to the History Company, a business of
the same kind and character as that carried on by
said company.

Statement of the case as made by the

plaintiff.

. >

Confining ourselves to the plaintiff's testimony
the following is a fair statement of the facts:

Prior to May, 1886, defendant was engaged in
the publication and sale of historical works and
other literary publications and was carrying on
business under the name of Bancroft's Works De
partment of A. L. Bancroft & Co., and was the
owner of the plates, paper, stock, money, out
standing accounts, and other property belonging
to said business. For a long time prior to May,
1886, the plaintiff had been employed to manage
said business and during that month the parties
made an agreement which on August 20, 1886,
was reduced to writing. The agreement was in
these words:

" This agreement made in San Francisco, Cali-
u fornia, by H. H. Bancroft and N. J. Stone, wit-
" nesseth: That in consideration of the valuable
" services done by the said Stone in conducting
" the publication and sale of the historical works
" of the said Bancroft, the business formerly being
" conducted as the Bancroft's Works Department
" of A. L. Bancroft & Co., but now being done
" and shortly to be incorporated under the laws
" of California as the History Company, the said
" Bancroft hereby sells and assigns to the said
u Stone a one-tenth interest in the said History

" Company, plates, paper, stock, money, outstand-
" ing accounts, or other property of said com-
" pany, upon the following conditions:

" The said N. J. Stone is to devote his whole
" time and best energies, so far as his health and
" strength shall permit, for a period of not less
" than ten years from the date of this agreement,
" to the publication and sale of the historical
" works of H. H. Bancroft, and of such other
" works, and conduct such other business as may
" be from time to time taken up and entered into
" by said History Company; and the said Stone
" agrees not to enter into or engage in, directly
" or indirectly, any other mercantile or manu-
" facturing business, or to any other business or
" occupation which shall in any wise absorb his
" mind and strength, or interfere with his in-
" terest or efforts on behalf of the said History
" Company during the said term of ten years.

" Upon the incorporation of the History Com-
" pany one-tenth of the whole number of shares
" shall be issued and delivered to the said N. J.
" Stone; but should the said Stone fail in any-
" wise to carry out this agreement, or any part
" thereof, in its full letter and spirit, then the said
" one-tenth interest in the said History Company
" shall be forfeited and revert to the said H. H.
" Bancroft; provided, and it is distinctly under-
" stood and agreed, that in case of the death of

" the said N. J. Stone before the expiration of
" five years from the date of this agreement, the
" said Stone having fulfilled all the conditions of
" this agreement up to that time, then one-half of
" the said one-tenth interest of the said Stone in
" the History Company shall go to his heirs, arid
" be their property unconditionally; and in the
" event of the death of the said Stone at any
" time after the expiration of five years from the
" date of this agreement, the terms hereof having
" been fully complied with, then the whole of
" the said one-tenth interest shall belong to his
" heirs unconditionally.

" The salary of the said Stone shall be $350 a
" month. The copyright of the said historical
" works belongs exclusively to the said Bancroft,
" and shall be fifty cents a volume for the History
" and Diaz, and twenty cents on the little history
" of Mexico.

" Signed in San Francisco, the twentieth day
" of August, 1886.

" H. H. BANCKOFT,
" N. J. STONE."

Between May, 1886 and the 23d day of Sep
tember, 1886, plaintiff arid defendant carried on
the business referred to in the agreement under
the name History Company, the plaintiff own
ing one-tenth of said business and the defendant
the remaining nine-tenths. The salary of plaintiff

was paid out of the moneys belonging to both the
parties and charged as an expense of the busi
ness. (Trans., folio 140.) On the 23d day of
September, 1886, the parties formed a corporation
under the laws of California, called History Com
pany, to which was transferred all of the property
referred to in the agreement, and from its forma
tion until the commencement of this action it
carried on the business previously carried on by
plaintiff and defendant. Plaintiff admits that
defendant has performed the agreement on his
part unless the payment of the salary is imposed
by the agreement upon defendant individually.
(Trans., folios 234 and 235). Immediately after
the formation of the corporation the plaintiff re
ceived certificates representing one-tenth of the
capital stock thereof. From the date of the form
ation of the corporation until May, 1892, the
plaintiff was a director and vice-president thereof,
and from the date of the formation until July,
1892, he acted as the manager of its business. A
by-law of the History Company adopted imme
diately after its incorporation and to which the
plaintiff assented in writing, fixed the salary of
the vice-president at three hundred and fifty dol
lars per month. At all the times after the forma
tion of the corporation the salary of the plaintiff
was paid to him by the treasurer thereof, who was
under his orders. The salary paid to the plaintiff

was treated as one of the expenses of the business
and was always entered upon the books of the
company as such an expense, and all of the profits
which were divided either in the shape of divi
dends, or in any other way, were the net profits
after the deduction of all expenses, including the
plaintiff's salary. (Trans., folio 197.) It is ad
mitted by the plaintiff that his salary was never
charged to or paid by defendant individually.
(Trans., folio 139.) The arrangement at the
time it was made, as understood by the plaintiff,
was that he was to have ten per cent, of the en
tire business and ten per cent, of the net profits
after all expenses were paid, including his own
salary. (Trans., folio 140.)

Plaintiff received the salary of three hundred
and fifty dollars a month from the History Com
pany until the end of June, 1892. Before the
commencement of this action he commenced two
suits against the History Company, in each of
which he sought to recover three hundred and
fifty dollars, the first being for services rendered
as its manager during the month of July, 1892,
and the second for services rendered as its man
ager during the month of August, 1892. He sub
sequently brought this action to recover for
services alleged to have been actually performed
between the 1st day of July, 1892, and the date
when the complaint was filed, a period of fourteen
months, ending August 31, 1893.

It is not claimed by the plaintiff that during all
of the time for which he seeks to recover from the
defendant for services rendered, he was actually
engaged either in the service of the defendant or
the service of the History Company. It is claimed
that some time in the early part of 1892, the de
fendant determined to prevent the plaintiff from
performing his duties as manager of the business
of the corporation, and that after June, 1892, he
was not able, by reason of the interference of the
defendant and those under him, to perform the
duties of that position. He says his desk was
moved from place to place, and that he was sub
jected to every indignity that one rnan could in
flict upon another; that his desk was placed in a
draught, and he notified the secretary of the cor
poration that he could not remain unless its posi
tion was changed. He did remain, however, for
a long time after he had been so badly treated
(Trans., folio 204), and says emphatically he was
never dismissed or discharged (Trans., folio 236).
Plaintiff chaims to have visited the office of the
company every day during the month of July,
1892; occasionally, but not very often, during
August and September, 1892; that he was there
during October, but did not do much of anything;
that he was there part of the time in November
and most of the time during December. He went
there every day during January, 1893, and every

day during February, 1893, until he served a
notice upon Borland, the secretary and treasurer
of the History Company, and said he was ready
to work (Trans., folios 149 to 152).

He made a demand on the treasurer of the cor
poration for the salary which he claimed to be due
subsequent to June, 1892, but never made any
demand on defendant (Trans., folio 152). When
he addressed Dorland concerning his services he
addressed him as secretary and treasurer of the
corporation, and Dorland answered him in that
capacity (Trans., folio 170).

The plaintiff says he gave the notices to Dor-
land in December, 1892, and January, 1893
(Trans., folio 101). He claims to have been at
the office of the History Company nearly every
day up to the time of the demand made upon
Dorland, and after that time he engaged in other
business (Trans., folio 169). During the months
of May, June and July, 1893, he admits he was
giving his attention to the publication of a work
called " Femina," in which he had acquired an
interest (Trans., folio 161). For each of those
three months he recovered in this action three
hundred and fifty dollars for services alleged in
his complaint to have been rendered to defendant.
In the publication of the work called " Femina. "
he was associated with one Miller, each of them be
ing equally interested in the business (Trans., folia

162). He says he considered that during the time
he was engaged in business with Miller the His
tory Company was entitled to call upon him to
perform services as manager for it, and that it was
understood between him and Miller that he would
make no arrangement by which he would not be
subject to the call of the History Company. He
claims to have considered all the time he was with
Miller that the contract set out in the complaint
was in full force and effect, and that the History
Company was entitled to call upon him at any time
(Trans., folio 168).

On the 21st day of October, 1893, the plaintiff
and Miller signed and executed an instrument in
writing, in which they declared that the partner
ship existing between John A. Miller, party of the
first part, and Nathan J. Stone, party of the sec
ond part, under the firm name of the Femina
Company, was that day dissolved by mutual con
sent. The execution of this document was wit
nessed by one of the counsel for the plaintiff.

The Femina Company had an office, and the
plaintiff's name appeared on the door as manager
of its business (Trans., folio 186). That company
was engaged in publishing a literary work and the
History Company was engaged in publishing
literary works (Trans., folio 387).

The only object in calling attention to these
facts in this statement is, to emphasize the fact

that the Court below, in this action to recover for
services alleged to have been rendered, gave
plaintiff a judgment as compensation for services
claimed to have been rendered by him for a
period during which, by his own admission, he
was actually engaged in conducting a rival busi
ness.

The demurrer to the complaint should have been
sustained.

A demurrer was interposed by defendant to the
complaint in which it was claimed : First, that it
did not state facts sufficient to constitute a cause of
action; and, second, that it was ambiguous, uncer
tain and unintelligible in that: (a) it did not appear
whether the corporation referred to in the agree
ment was ever formed; (b) that it did not appear
what services were performed by plaintiff, and
(c) that it did not appear whether the services, if
any, performed by him were rendered to the de
fendant or to the History Company.

Separate assignments were made as to ambig
uity, uncertainty and unintelligibility.

It is to be remembered that the action is not for
the breach of the contract and that the complaint
does not allege any damage, but, on the contrary,
it alleges performance of the agreement for which
the plaintiff claims a stipulated compensation.

When the agreement was executed defendant

was the owner of a business "then being done
and shortly to be incorporated under the laws of
California," under the name of History Company,
and was the owner of all the property belonging
or appertaining thereto. By the instrument he
" sold and assigned to plaintiff a one-tenth interest
in the said History Company, plates, paper, stock,
money, outstanding accounts, and other property
of said company." (Trans., folio 5.) This is all
defendant did or agreed to do. There is nothing
executory in the agreement so far as he is con
cerned. The complaint alleges the execution of
the instrument by him, which is equivalent to an
allegation that at that date he transferred and sold
to plaintiff a one-tenth interest in the property
mentioned, and from that time forward plaintiff
became and was jointly interested with defendant
in the business, defendant owning nine-tenths and
plaintiff one-tenth thereof.

Plaintiff, upon his part, agreed to devote his
whole time for ten years after the date of the
agreement to the business of the History Company,
and that during that time he would not engage in
any manufacturing business, or any business that
would interfere with his interests in or efforts on
behalf of said History Company.

The obligation imposed by the agreement upon
plaintiff was to render service, not to the defend
ant, but to the History Company, and when he

alleges that he has performed the agreement on his
part, he is to be understood as saying that he has
rendered to the History Company the stipulated
service. This service must have been rendered
to the History Company, a corporation, or to a co
partnership doing business under that name and
composed of plaintiff and defendant. If the agree
ment was so far executed as that plaintiff per
formed all of its covenants on his part, the parties
must have carried on the business as copartners,
or a corporation must have been formed to which
the property and business were transferred. If
plaintiff performed any part of the agreement be
fore a corporation was formed, then it necessarily
follows that he and defendant were carrying on
the business of the History Company and their
relations were those of partners. When defend
ant executed and delivered the assignment and
transfer to plaintiff the latter became proprietor
of an interest in a going business, of which prior
to that time defendant was the sole owner. The
agreement provided for a continuance of the busi
ness, to which the plaintiff was to devote his en
tire time for a period of ten years. No one will
seriously contend that this was a contract of em
ployment wherein defendant was the employer
and plaintiff the employee. Defendant did not
take plaintiff into his employment, but took him
into the business, into the History Company, and

whereas he had up to that time been only an em
ployee of the defendant, he was thenceforth in
terested with him in the business; in other words,
was his partner.

Defendant did not undertake to pay the plaintiff
the salary stipulated in the agreement, but both
plaintiff and defendant agreed that plaintiff's
salary should be three hundred and fifty dollars
per month, which salary was, of course, to be paid
by the History Company. It will hardly be
questioned that from the date of the agreement
the parties were to share in the profits and losses
of the business in proportion to their respective
interests.

Section 2395 of the Civil Code defines partner
ship thus: "Partnership is the association of two
" or more persons for the purpose of carrying on
" business together and dividing the profits be-
" tween them." The agreement in this case ex
pressly stipulated that the parties were to carry on
business together, and no one will say they were
not to divide the profits. In other words, the
agreement brings them clearly within the provis
ions of this section of the Civil Code.

It may be suggested that the agreement does
not contain any express provision that the parties
are to divide the profits of the business. In Bloom-
field vs. Buchanan, 13 Or., 108, it was held that it
was not absolutely necessary in order to create a

partnership that the word " partnership " should
be used, " or any express mention made in regard
" to profit or loss, * * * and it is not neces-
" sary that there should be an express stipulation
" between partners to share the profit and loss, as
" that is an incident to the- prosecution of their
" joint business."

In Richards vs. Grinnell, 63 Iowa, 44, Chief
Justice Rothrock quotes with approval the follow
ing from Parsons on Contracts: "Where parties
" agree to enter into an association for the purpose
" of buying or selling and carrying on joint busi*
" ness indefinitely, no stipulation for dividing
" profit and loss is necessary, as that is an incident
" to the prosecution of their joint business."

It seems entirely unnecessary to multiply au*
thorities on this point. As has been suggested)
the portion of the contract providing that "the
salary of the said Stone shall be three hundred
and fifty dollars a month," did not impose upon
the defendant an obligation to pay that sum or any
sum, but simply meant that out of the business in
which the parties were about to engage the plaintiff
should receive the salary agreed upon by them.
His salary was one of the expenses of the business
to be deducted before the division of profits, and
hence he was himself to contribute one-tenth of
his compensation.

A case on all fours with the one at bar and de-

cisive of the question now under discussion is
Weaver vs. Upton, 7 Iredell's Law (N. C.), 458.
The opinion is short and we quote it in full:

" Weaver and Upton, on the 16th of Decem-
" ber, 1840, leased of one McKenzie a tract of
" land for three years to mine for gold; the rent
" was to be one-sixth part of the gold that should
" be obtained by the lessees. On the 27th of
" December, 1841, the lessees entered into the
" agreement under their seals, mentioned in the
" case. Upton was to work twenty hands, and
" Weaver four hands, ' bearing a proportionable
" ' part of the expense attached thereto. The
" ' said Upton, of the first part, bargains and agrees
" ' to give me, the said Weaver, of the second
" * part, four hundred and fifty dollars to manage
" ' the business, which I agree to manage accord-
" * ing to the best of my judgment.' It seems to
" us, that the agreement was one of partnership;
" and the law being well settled, that the acting
" and business partner is never entitled to claim
" pay of the firm for his services, unless he stipu-
" lates for it in the articles of copartnership or
" otherwise; the parties therefore agreed, that
" Weaver should manage the business, and Upton,
" the other partner, agreed to give him $450 ' to
" manage the business.' Weaver was to bear his
" proportion of the expense of managing and
" working the mine. The salary of the, superin-

" tendent was a part of the expense of the firm.
" And the firm ought, according to the true construc-
" tion of the articles, to bear this expense in propor-
" tion to the number of hands each partner worked
" in the mine. The words ' The said Upton bar-
" gains and agrees to give me, the said Weaver,
" $450 to manage the business,' only denoted
*' the assent of Upton, that Weaver, although a
" partner, should be paid for his services $450.
" The parties were stipulating concerning the part-
" nership business, and the terms on which it was to
" be carried on; and among others that Upton bar-
" gained and agreed to let Weaver have $450 for
" his services that year. It seems to us that it
" would be against justice and right, to construe
" the covenant to be an agreement by Upton, that
" he would pay that sum out of his own pocket.
" We think that it was an item in the expense
" account of the firm and that the firm should pay
" it."

In the Weaver case the language was " the said
Upton bargains and agrees to give me, the said
Weaver, $450 to manage the business," while in
the case at bar the language is, " the salary of said
Stone shall be $350 a month." From what has
been said, it necessarily follows that the plaintiff
did not have a cause of action against the defend
ant to recover the salary which it was agreed he
should receive, and hence, the general demurrer

should have been sustained. The special demurrer
was likewise well taken. If the services claimed
to have been performed by the plaintiff were
rendered for a corporation formed by the parties,
or a copartnership consisting of the parties, then
such services were not rendered to the defendant,
and as the complaint failed to show to whom the
service was rendered, and also failed to show
whether or not a corporation had been formed, it
was ambiguous, uncertain and unintelligible in the
particulars specified in the demurrer.

II.

The plaintiff did not perform the contract.

Without desiring to repeat what has been said
in relation to the insufficiency of the complaint,
we again call attention to the fact that it sets forth
a cause of action for services actually performed
by plaintiff. The action is not one to recover
damages for breach of the agreement. No damage
is alleged. The salary of the plaintiff was paid by
the History Company for all services rendered by
him to and including the end of June, 1892. In
this action he recovered judgment for services al
leged to have been rendered from July 1, 1892, to
September, 1893. By his own admission he did
not render any service after January, 1, 1893,
and little, if any, subsequent to July, 1892. Dur
ing a large part of the year 1893 he was engaged
in other business. He claims to have notified the

secretary of the History Company in December,
1892, and January, 1893, that he was ready to
work, and the theory upon which he recovered in
this action was that although he did not actually
perform the services alleged in his complaint to
have been performed, he was ready and willing
to perform; that performance on his part was pre
vented by defendant and that readiness to per
form was in such a case equivalent to performance.
This sounds very startling but is nevertheless true.
In this case the allegation of actual performance is
claimed to have been proven by showing that
there was no performance. The action here is for
salary, and to have recovered salary plaintiff should
have shown performan-ce of the service. Assum
ing for the moment that defendant agreed to pay
the salary, he was not liable to pay it except upon
performance by plaintiff. One who has been hired
for a term is entitled to recover damages from the
employer if prevented by the latter (without good
cause) from performing the service contracted for,
but an employee discharged without cause before
the expiration of the term for which he was hired
cannot recover wages from the employer lor the
time intervening between the date of his dis-*
charge and the end of the term for which he was*
employed. He can recover wages only when he
has actually rendered the service for which the
wages were to be paid. If prevented from per-

forming his contract of service, he cannot, al
though he may have been ready and willing to
perform, recover the wages agreed to be paid, but
must have resort to an action for damages for the
breach of the contract of hiring. The doctrine
of " constructive service " (and it was upon the
supposed soundness of that doctrine that plaintiff
recovered in the Court below) has been exploded
and repudiated by the courts of this country and
England. We quote the following from Woods
Law of Master and Servant, page 254:

"Formerly there is no question but that a ser-
" vant, under such circumstances, was regarded
" as entitled to hold himself in readiness to per-
" form his contract, and, being able, ready and
" willing to do so, was entitled to recover his
" wages for the whole term, upon the ground of
" constructive service. This doctrine had its ori-
" gin in a decision rendered by Lord Ellenborough
" in a nisi prius case tried before him. In that
" case the plaintiff was discharged before the
" termination of the quarter for which he was
" employed, and in an action for his wages for the
" entire quarter, Lord Ellenborough said, that ' as
" the plaintiff had served a part of the quarter, and
** was ready and willing to serve for the residue,
" he might, in contemplation of law, be consid-
<l ered to have served the whole.' This doctrine
" has been adopted in numerous English cases

" since, which it will not be profitable to notice
" here; but after being repudiated, and then
" again adopted, it was finally exploded, and the
" doctrine established that a person wrongfully
" discharged could not, by simply holding himself
" in readiness to perform his contract, be regarded
" as having in fact performed it, and thus be en-
" titled to sue for and recover his wages for the
" entire term, but that he must be restricted in his
" recovery to the amount of his actual loss. The
" action in such cases is not for wages, but for
" damages for breach of the contract. It cannot
" with any propriety be claimed that an action for
" wages can be sustained when the servant has in
" fact rendered no service. Such a doctrine is in
" defiance of the meaning of the term, and rests
" upon no solid foundation, either in principle or
" policy. Not in principle, because it conflicts
'* with the doctrine that every person injured by
" the act of another is bound to use ordinary dili-
" gence to make the burden as light as possible,
" and therefore is bound not to hold himself in
** readiness to perform the contract, but to use
" reasonable efforts to secure other employment;
" not in accordance with sound public policy, be-
" cause it encourages indolence, and in the lan-
" guageof Parke, B., 'such a doctrine, if sanctioned,
" would be of pernicious consequences.' The true
" rule, which is generally adopted in this country,

" is, as previously stated, that such actions must be
" for damages for a breach of contract."

The leading case on the subject in this country
is Howard vs. Daly, 61 N. Y., 362. After citing
a large number of American and English cases in
which the doctrine of constructive service is re
pudiated, it is said:

" These cases and authorities hold, in substance,
" that if a servant be wrongfully discharged, he
" has no action for wages, except for past services
." rendered, and for sums of money that have be-
" come due. As far as any other claim on the
" contract is concerned, he must sue for the injury
" he has sustained by his discharge, in not being
" allowed to serve and earn the wages agreed
" upon. * * * This doctrine (constructive
*• service) is, however, so opposed to principle, so
" clearly hostile to the great mass of the authori-
" ties, and so wholly irreconcilable to that great
" and beneficent rule of law, that a person dis-
" charged from service must not remain idle, but
" must accept employment elsewhere if offered,
" that we cannot accept it. If a person discharged
" from service may recover wages, or treat the
" contract as still subsisting, then he must remain
" idle in order to be always ready to perform the
" service. How absurd it would be that one rule
" of law should call upon him to accept, other em-
" ployment, while another rule required him to

" remain idle in order that he may recover full
" wages. The doctrine of ' constructive service '
" is not only at war with principle, but with the
" rules of political economy, as it encourages idle-
" ness, and gives compensation to men who fold
" their arms and decline service, equal to those
" who perform with willing hands their stipulated
" amount of labor. Though the master has com-
" mitted a wrong, the servant is not for one mo-
" ment released from the rule that -he should
" labor; and no rule can be sound which gives
" him full wages while living in voluntary idle-
" ness. For these reasons, if the plaintiff was
" discharged after the time of service commenced,
" she had an immediate cause of action for
" damages."

In James vs. Allen County, 44 Ohio St., 228,
this question was presented in a case almost ident
ical with the one at bar. The plaintiff sued to
recover wages claimed to be due under a contract
for service which defendant had prevented him
from performing. The Court held the remedy
of plaintiff was an action for damages, and after
citing a number of cases, said:

" The decisions in these cases appear to rest
" upon the doctrine of ' constructive service." In
" several of them it is adopted in words; in others
" the principle is assumed without designating it
" by that title. If that is not their basis it is

" difficult to see that they have any. The theory
" of that doctrine seems to be that inasmuch as
" the employee holds himself ready to do the work,
" therefore he has done the work; that readiness
" is, for all purposes, equivalent to performance.
" For the purpose of allowing a recovery in some
" amount, his readiness to do and tender of per-
" formance may have the effect of performance to
" the extent of putting the employer in the wrong,
" but how can it be said, in truth, that he has done
" the work? that he has performed? The claim
" is based upon a fiction, an untruth. There is
" no acceptance of the services; there is no de-
" livery of them; the defendant has not had the
" benefit of them; he has not had value received,
" and upon what principle is it that in law he is
" liable for the agreed price when he has not re-
" ceived the commodity which he agreed to buy,
" and the other party has not parted with the
" commodity which he agreed to sell? The doc-
" trine of ' constructive service,' as applied to a
*' case of this character, is one beset with difficul-
" ties. It requires a plaintiff to assume that to
" exist which in fact has no existence. He is de-
" manding wages ichen he has rendered no service.
" The doctrine contradicts the very term itself.
" How can he truthfully aver, as indebitatus as-
" sumpsit, that the defendant is indebted to him
" for work and labor done? Averring it, how

" could he prove it? But, aside from the matter
" of pleading and proof, in order to recover upon
" the strength of this doctrine, the employee must
" not only be willing to perform on his part, but
" must hold himself in readiness to perform. This
" implies that he will remain idle. Public policy,
" not to say public morals, forbids the encourage-
" ment of an idle class. Being subject to the
" universal rule that a person injured by the act
" of another, is bound to use ordinary diligence to
" make the damage as light as may be, the dis-
" charged employee must use ordinary care to
" obtain employment. He may not be required
'* to seek elsewhere, or to engage in a different
" industry. But he is bound to use ordinary effort
" to obtain similar employment in the same vicin-
" ity; at least, if such employment is offered, he
" is bound to take advantage of it. It would be
" a direct encouragement to idleness to hold that
" he who may have, but refuses, similar service,
" is entitled to full compensation the same as
" though he performed full labor. This rule stands
" squarely across the path of ' constructive service.'
•' For if the workman is bound to accept employ-
" ment of another employer how can he continue
" ready to resume work under his former em-
" ployer? A learned writer, whose valued paper
" in support of the doctrine of ' constructive ser-
** vice " is cited by counsel, uses this language:

" ' The doctrine of constructive service, however,
" ' does not permit an employee who has been
" ' wrongfully discharged to remain wilfully idle
" ' during the period for which he had been en-
" ' gaged.' A most singular conception of the
" ground work of the doctrine, it seems to us.
" Being actually at work for B, how can he be
" constructively at work for A? Being required
" to hold himself in readiness to resume his work
" for A, how can he engage with B? Engaging
" with B, how can he be ready to resume work
" with A?

" 'Constructive service,' as here sought to be
" applied, never had, as we think, support in prin-
" ciple, and the support derived from authority is
" at least very considerably impaired."

In the note to Decamp vs. Hewitt, 43 Am. De
cisions, 205, the question is discussed at length,
and many authorities cited, holding that a dis
charged employee cannot maintain an action to
recover wages for services which he has not actu
ally performed.

III.

If service was rendered by plaintiff it i.oas ren
dered to the History Compang and not to defendant.

This question was necessarily referred to in the
discussion of the points raised on demurrer. The
facts disclosed by the record make the position of
the defendant on this issue absolutely unanswer-

able. While the agreement itself shows conclu
sively that defendant did not employ the plaintiff,
the conduct of the parties shows beyond the
shadow of a doubt that the plaintiff did not con
sider the defendant his employer and did not look
to him for the payment of his salary. Between
May, 1886, and the 23d of September, 1886, the
business was carried on by the parties as a part
nership, the plaintiff owning one-tenth and the
defendant nine-tenths. The salary of plaintiff was
paid out of the moneys belonging to both the par
ties and charged as an expense of the business.
(Trans., folio 140). The arrangement at the time
it was made as understood by the plaintiff was,
that he was to have ten per cent, of the entire
business and ten per cent, of the net profits after
all expenses were paid, including his own salary.
As soon as the corporation was formed the prop
erty and business were transferred to it, the
plaintiff received one-tenth of the capital stock
and the business was carried on by the corporation
until the date of the commencement of this action.
The plaintiff acted as manager for the corpora
tion until the end of June, 1892, and all of the
service which he claims to have rendered subse
quent to June, 1892, he claims to have rendered
to the corporation. From the date of its forma
tion until the end of June, 1892, the corporation
paid his salary. It was paid through the treasurer

of the company who was under the direction of
the plaintiff, was entered upon the books of the
corporation as an expense of the business, and all
profits which were divided either in the shape of
dividends or in any other way, were the net
profits after the deduction of all expenses includ
ing the plaintiff's salary. He commenced actions
against the corporation to recover for services
rendered it during the months of July and Au
gust, 1892. For the payment of the salary which
he claimed to be due him subsequent to June,
1892, he made demand on the treasurer of the
corporation, but never made any demand on the
defendant. (Trans., folio 152.) When his right
to act as manager of the History Company was
interfered with he addressed Dorland as the sec
retary and treasurer of the corporation, and Dor-
land answered him in that capacity. He claims
that when he made the arrangement with Miller
he informed the latter that he was subject to the
call of the History Company, and he considered
that during all the time he was engaged in busi
ness with Miller that the History Company was
entitled to call upon him at any time to perform
the service stipulated by him in this agreement to
be performed. (Trans., folio 168.) The plaint
iff managed the business of the copartnership and
of the corporation and deducted all expenses, in
cluding his own salary, before dividing profits or

declaring dividends, and took at one time one-
tenth, and later fifteen one-hundredths of the
profits remaining after such deduction.

We feel that it is not necessary to discuss this
question at any greater length, and we leave it
with the statement that it is impossible to read the
testimony of the plaintiff and reach any other
conclusion than that he thoroughly understood
that after the formation of the corporation he was
in its service and not the service of the defendant,
and that his compensation was to be paid not by
the defendant but by the corporation.

The authorities cited in support of the demurrer
(particularly Weaver vs. Upton) are conclusive
against the plaintiff on this question.

IV.

The defendant fully performed the agreement.

The plaintiff admits that defendant transferred
to him one-tenth of the property, and that upon
the formation of the corporation the property and
business were transferred to it, and he received
certificates representing one-tenth of the capital
stock. This was all defendant agreed to do, and
hence there was no testimony sustaining the alle
gation of the complaint that he had failed to per
form the terms and conditions on his part.

The plaintiff was not dismissed or discharged,
and hence can only recover for the services actually
rendered.

While it is claimed by the plaintiff that the
conduct of some of the officers and employees of
the History Company was such as to make it very
disagreeable for him to remain at the office of the
company, he does not claim that at any time dur
ing the period for which he claimed compensation
in this action, the defendant personally did or said
anything calculated to prevent him from acting as
the manager of the business of the corporation.
When interfered with in the discharge of his duties
he served notice on the secretary and treasurer of
the corporation, but had no conversation of any
kind with the defendant between July, 1892, and
the time when this action was commenced (Trans.,
folio '152).

The immediate cause for the plaintiff quitting
the service of the company is stated by him as
follows: (Trans., folio 203): "I considered I
wasn't in duty bound to my family and myself to
stay there in that draught and get a cold, and so 1
informed Mr. Dorland that I couldn't stay there
unless he changed the desk." He claims that
Dorland, told him he had been instructed by de
fendant not to let him have the correspondence
and not to permit him to do any work at the office

of the company. He states that Borland was un
der direction of defendant " because Borland said
so," hut admits that he knew that Borland was
acting under direction of the defendant only be
cause Borland said so. (Trans., folio 104).

While it is true that plaintiff testified that Mor
rison, the vice-president of the company, told him
he had no right there in July, 1892, he continued
to go there and discharge his duties for a long
time after that, and did not act upon the sugges
tion which Morrison made to him. (Trans., folios
204 and 205). Notwithstanding the conduct of
Borland and Morrison, the plaintiff says posi
tively and unequivocally that he was never dis
missed or discharged from the service of the His
tory Company. (Trans., folio 236).

There cannot be found anywhere in the record
any testimony showing that the defendant dis
missed or discharged the plaintiff, or directed any
one to dismiss or discharge him. While it is true
he claims that the defendant treated him without
consideration on one or two occasions, everything
which he charges against defendant took place
long before he voluntarily left the History Com
pany's office. The last thing which defendant
did, so far as the testimony discloses, was to push
the plaintiff's desk, and this occurred in the month
of July, 1892. (Trans., folios 200 and 201.) He
certainly could not have taken that act as a dis-

charge, as on his own showing he remained and
discharged his duties for a long time after that.
The only reason why he discontinued his visits to
the office of the company is that his salary was
not paid. He says that the duties he performed
during September, October and November were
" sitting around and waiting. It was rather te
dious and not as easy as managing the business.
It was very little work. I would have been willing
to have gone there at eight o'clock in the morning
and stayed until five o'clock at night if my salary
had been paid; but I would rather have managed
the business." This testimony not only fails to
show that the defendant dismissed the plaintiff, but
there is no showing that he was dismissed by any
officer of the History Company. We do not for
a moment claim that if the testimony of the plaintiff
be true, there did not exist good cause for him to
quit the service of the History Company. But
quitting service for cause is not equivalent to a
discharge. While an employee who is, without
good cause, discharged before the end of the term
for which he was hired, may recover damages for
breach of the contract by the employer, one who
quits the service for good cause, can only recover
compensation for the portion of the term during
which he has actually rendered service. Harsh
treatment may have justified the abandonment of
the contract of service by plaintiff, but did not

amount and could not have amounted to a dis
charge by defendant. If, by reason of the harsh
treatment to which plaintiff was subjected, he
abandoned the contract of service, his recovery is
measured by the provisions of sections 2003 of
the CivilCode :

Civil Code, Sec. 2003: "An employee who quits
" the service of his employer for good cause is en-
" titled to such proportion of the compensation
" which would become due in case of full perform-
" ance as the services which he has already ren-
" dered bear to the services which he was to ren-
" der as full performance."

The manifestation of a disposition by the em
ployer to force the employee to quit the employ
ment does not amount to a discharge nor warrant
the rescission of the contract by the employee.

De Camp vs. /Stevens, 4Blackford (Ind.), 24.

The fact that the master constantly found fault
with the servant in respect to the manner of his
work, is not sufficient cause to warrant the servant
to terminate the contract.

Henderhen vs. Cook, 66 Barb., 21.

Telling a servant to go to hell is not only not a
discharge, but is not sufficient ground to warrant
the servant in quitting the employment.
Marsh vs. Ruksson, 1 Wend., 514.

While the discussion of this question seems out
of place in an action to recover for services al
leged to have been rendered, an examination of
this record will disclose that part of the time the
case was tried on the theory that it was an action
to recover for service actually performed, and at
other times it seems to have been treated as an
action to recover damages for breach of the con
tract of hiring.

VI.

The order denying defendant's motion for new
trial should be reversed for numerous errors com
mitted by the lower Court.

Something over sixty exceptions were taken by
the defendant during the trial, and we think most
of them well taken. The testimony which was
admitted against defendant's objection was not re
sponsive to any issue presented by the pleadings
and was calculated to and did influence the jury
to his prejudice.

The first two exceptions were taken to orders of
the Court overruling defendant's objection to
testimony in relation to certain matters which
took place in 1882, more than four years before
the making of the contract between plaintiff and
defendant, and ten years before the alleged breach
of contract. (Trans., folios 51 and 52.) There
was no issue presented to which this testimony was
responsive, and while it may be said that it did

not hurt defendant, it is to be presumed that the
jury attached some importance to it.

Exceptions 3 and 4 (Trans., folios 60 and 63)
were taken to orders of the Court overruling ob
jections to questions propounded to the plaintiff in
relation to the payment of dividends, and the con
duct of the History Company's business prior to
March, 1892. The plaintiff was paid the salary
which he claimed to and including June, 1892,
and it certainly made no difference whether the
company paid dividends prior to that time or not.
The object of this testimony and its effect must
have been to exaggerate the importance of the
plaintiff and to prejudice the jury against the de
fendant. Still more objectionable was the testi
mony to the effect that the defendant interfered
with the plaintiff in 1889, three years before the
alleged breach, by taking his name off the letter
heads of the History Company.

Exception No. 5 (Trans., folio 65) was to an
order overruling an objection to a question calling
for the conduct of the defendant at a meeting of
the directors of the History Company in 1889.
This did not show or tend to show any breach of
the contract in 1892, and indeed there is no claim
in the pleadings of any failure of performance by
the defendant, except his refusal to pay the
plaintiff's salary subsequent to June, 1892.

Exception No. 6 (Trans., folio 71) was to an or-

der overruling an objection to a question pro
pounded to the plaintiff calling for the response
made by Dorland to a demand made upon him as
the secretary and manager of the History Com
pany, for the payment of plaintiff's salary subse
quent to July, 1892. There was no showing that
Dorland was authorized to speak for the defend
ant, and the plaintiff himself testified later on that
the only knowledge he had that Dorland was
authorized to speak for the defendant was the fact
that Dorland himself had told him so. (Trans.,
folio 104.) The fact that the plaintiff made de
mand upon the secretary of the History Company
for his salary shows conclusively that he considered
the History Company his employer, and in an
action against the corporation such testimony would
have been relevant and competent; but it was
neither relevant nor competent in an action against
the defendant until it was shown that Dorland was
the agent of defendant.

Exception No. 8 (Trans., folio 80) was to an
order of the Court overruling an objection to a
question propounded to the plaintiff and calling
for information in relation to a conversation be
tween plaintiff and defendant, about the 15th of
May, 1892. As has been said, the plaintiff was
paid for all services rendered by him up to and
including the 30th day of June, 1892. He
claims he was never discharged or dismissed,

and asserts that he actually rendered service until
the latter part of the year 1892. Hence the tes
timony called for by this question was wholly
irrelevant and immaterial. An examination of
the testimony given in response to the question
will show that its object was to place the defend
ant in a most unfavorable light before the jury, and
that the object was accomplished.

The same may be said of Exception No. 9
(Trans., folio 85).

Exception No. 10 (Trans., folio 87) was to an
order overruling an objection to a question pro
pounded to the plaintiff, in relation to the levy of
an assessment in November, 1892, and exceptions
Nos. 11 and 12 (Trans., folios 88 and 89) present
substantially the same question. Whether an as
sessment was or was not levied or paid had noth
ing to do with this case, nor with the performance
of plaintiff's contract, nor the failure of defend
ant or the History Company to pay him his salary,
nor the refusal of the History Company or the
defendant to permit him to perform the contract.

Exception No. 13 (Trans., folio 96) was to an
order overruling an objection to a question pro
pounded to the plaintiff in relation to the reply
made to a question which he had put to Morrison.
The objection, which was certainly well taken,
was upon the ground that defendant was not bound
by any statement made by Morrison, and there

was no attempt made at any time during the trial
to show that defendant had authorized Morrison
to speak for him. The same question is presented
by Exception No. 14 (Trans., folio 103) in rela
tion to statements made by Dorland, the plaintiff
admitting that the only evidence he had of the
fact that Dorland was permitted to speak for the
defendant was that Dorland told him so (Trans.,
folio 104). The same question is presented by
Exception No. 15 (Trans., folio 105).

Exception No. 16 (Trans., folio 111) was to an
order of the Court overruling an objection to the
reading of an extract from a volume of defendant's
works published in 1890. The conduct of the
plaintiff during that year was not in issue arid any
statement which defendant may have made con
cerning him during that year was entirely irrele
vant and immaterial.

Exception No. 22 (Trans., folio 252) was to an
order overruling defendant's objection to a ques
tion put to the witness Hambly calling for a state
ment of the number of hours which plaintiff spent
in the office of the History Company each day
from September, 1886, to February, 1892. The
plaintiff's conduct prior to July, 1892, was not in
issue and had no relevancy or materiality to any
question upon which the jury was to pass.

Exception No. 23 (Trans., folio 311) was to an
order overruling a question put to the witness

Hartwell, asking if defendant ever countermanded
any of plaintiff's orders in relation to the business
of the History Company. Hartwell left the ser
vice of the company in May, 1892, and no issue
was presented in relation to the conduct of plaintiff
or defendant prior to that time. The effect of this
testimony was to place the defendant in an un
favorable light before the jury.

Exceptions Nos. 24, 25, 26, 27, 28, 29, 30, 31,
and 32 (Trans., folios 324, 333, 334, 336, 342; 344,
346, 349 and 352) were to orders of the Court
overruling objections made to questions propounded
to the witness Trigo. The object of the testimony
to which these objections were made was to prove
the formation of a conspiracy, in the latter part of
1891 or the early part of 1892, to prevent the
plaintiff from performing his contract of service,
to prevent him, as a stockholder, from receiving
any profit from the corporation, and to rob the
History Company of a portion of its property.
How this testimony, or any of it, tended to show
the performance of the contract by the plaintiff,
or that defendant was liable to plaintiff for the
agreed salary, which were the only issues pre
sented by the pleadings, is difficult to understand.
It is very easy to appreciate, however, that the
testimony placed the defendant in a very unen
viable light before the jury, and induced for the
plaintiff a great deal of sympathy to which he
was not entitled.

Exception No. 33 (Trans., folio 471) is to an
order overruling an objection to the introduction
of a letter written by Morrison in February, 1892.
The plaintiff stated that the letter was offered for
the purpose of showing that the witness had ap
plied to the defendant for the office of vice-presi
dent of the History Company. The plaintiff was
not suing to recover for services as vice-president
of the History Company, and it is riot claimed that
any agreement was made that he should have or
retain that office. At any rate, nothing of that
kind is said in the agreement on which the action
is founded. The object of the letter was to show
that the witness Morrison had attempted to under
mine the plaintiff, and its effect was to place him
and the defendant in an unfavorable light.

Exception No. 35 (Trans., folio 615) was to an
order overruling a question to the witness Moore,
in relation to certain statements made to him by
Morrison. This was an attempt to contradict Mor
rison on a collateral matter brought out by the
plaintiff on his cross-examination. Having ex
amined him on a collateral matter, he was bound
by his answer and should not have been permitted
to contradict him.

The same objection is presented to Exception
No. 35 (Trans., folio 624). On the cross-exam
ination of Miller the plaintiff against the defend
ant's objection went into certain collateral matters

and then attempted to contradict the testimony of
the witness on those subjects.

Exception No. 39 (Trans., folio 673) was to an
instruction given to the jury to the effect that if
they found that plaintiff was ready to perform the
service and was prevented by defendant from per
forming, they should find in his favor; and the
same question is presented by Exception No.
40 (Trans., folio 674). As we have several
times suggested, the Court below confounded
this with an action for damages for breach of
contract and admitted evidence and instructed
the jury on that theory. While the rule laid
down might have been proper in an action
to recover damages for the refusal of the de
fendant to permit the plaintiff to perform his con
tract it had no application in an action to recover
for services alleged to have been actually rendered.
The jury should have been told that in order to
entitle plaintiff to recover in this action, he should
have shown actual performance of the service al
leged in his complaint to have been performed.

Exception No. 41 (Trans., folio 676) is to an
instruction reading as follows: "There is testi-
" mony tending to show that the plaintiff was not
" discharged from employment under said agree-
" inent either by the defendant or by the History
" Company. Under this state of facts, the plaintiff
" was simply bound to hold himself in readiness

" to perform such services as may have been re-
" quired of him by the said defendant or the
" History Company. If you find from the evi-
41 dence that he was not required or allowed by
" either the said History Company or the said
" defendant to perform any services, but held
" himself in readiness to execute the contract, in
" accordance with its terms, such readiness to per-
" form is equivalent to performance." This in
struction told the jury that the defendant was
responsible, not alone for his own conduct, but for
the conduct of the History Company; not alone
for his own default, but for the default of the
History Company; not alone for his own refusal
to permit the plaintiff to perform his contract, but
also for the refusal of the History Company to
permit him to perform; and that if plaintiff was
ready to perform and the History Company re
fused to allow him to perform, such readiness was
equivalent to performance and entitled him to a
verdict, not against the History Company but
against the defendant, for the full amount for
which he sued.

This instruction was particularly hurtful to the
defendant, as the Court had admitted against his
objection testimony tending to show acts unfriend
ly to the plaintiff on the part of the treasurer and
vice-president of the History Company, and the
jury were told in effect that if those officers had

thrown obstacles in the way of the performance of
the agreement by plaintiff, that defendant was
answerable therefor, although he had not done
anything calculated to interfere with the plaintiff
or to prevent him from carrying out his contract.
Exception No. 42 (Trans., folio 679) was to an
instruction in which the jury was told that if the
defendant prevented the plaintiff from discharging
the duties required of him, he was entitled to the
salary mentioned in the agreement " the same as
if all the duties required by said contract had been
performed." This was not only a bad instruction
in this case, but would not have been good even
in an action to recover damages for the breach of
the contract. A discharged employee is not under
any circumstances entitled to his salary " the same
as if all the duties required by the contract of
hiring had been performed." He is entitled to
recover as damages the amount which he has lost
by having been prevented from performing the
agreement, but it by no means follows that his loss
is the salary stipulated to be paid to him. The
measure of the plaintiff's recovery in an action for
damages is correctly stated in the instruction to-
which Exception No. 43 (Trans., folio 681) was
taken. The latter instruction would have been
proper in an action for breach of contract, but it
was improper in this case, and further than that,
it was impossible for the jury to reconcile it with

the instruction to which Exception No. 42 was
taken.

Exceptions Nos. 46, 47 and 48 (folios 684 and
685) were to instructions charging the jury in re
lation to the amount which plaintiff was entitled
to recover. The Court committed error in giving
each of these instructions, as this was not an ac
tion for " default," no " measure of damage " was
in issue, because no damage was alleged, nor was
"the detriment caused by the breach of an obli
gation " presented to or to be passed upon by the
jury.

Exception No. 48A (Trans., folio 687) was to
the refusal of the Court to give an instruction re
quested by defendant, and we submit that it is
only necessary to read it in order to see that the
instruction was proper and should have been
given.

Exception No. 49 (Trans., folio 688) was to the
refusal of the Court to instruct the jury as follows:
" You are instructed that the written agreement
" set forth in the complaint does not provide that
" the salary of the plaintiff shall be paid by de-
" fendant." It was the duty of the Court to
construe the agreement and to tell the jury upon
whom rested the obligation to pay the salary.
That the agreement did not provide for the pay
ment of the salary by defendant, we think we
have conclusively demonstrated.

Exception No. 50 (Trans., folio 689) was to the
refusal of the Court to instruct the jury that if a
corporation had been formed and the property
mentioned in the agreement turned over to it and
one-tenth of the capital stock issued to the plaint
iff, and the plaintiff became and acted as the
manager of the corporation, the claim of the
plaintiff, if he had any, was against the corpora
tion and not against the defendant.

Exception No. 51 (Trans., folio 690) was to the
refusal of the Court to instruct the jury that in
order to find for the plaintiff they must find that
he actually rendered the service for which he
sued, and that in this action it was enough for him
to show that he was prevented from performing
such service. This instruction correctly stated
the law upon the subject to which it related, and
should have been given.

Exception No. 52 (Trans., folio 693) was to the
refusal of the Court to give an instruction reading
as follows: "If you find that plaintiff was not
" dismissed or discharged from the employment,
" but that he quit said employment on account of
" the treatment to which he was subjected, then I
" instruct you that this was an abandonment of the
* employment by him, and that he cannot recover,
" except for services rendered before such aban-
" donment." This instruction correctly stated the
rule of law laid down in section 2003 of the Civil

Code, and should have been given. The Court
modified the instruction so as to provide that if the
plaintiff quit the employment on account of the
treatment to which he was subjected by persons
other than the defendant, that it was an abandon
ment of the service, and he could not recover
except for the services actually rendered. If the
plaintiff quit the employment on account of the
treatment to which he was subjected, it was cer
tainly an abandonment of the employment, whether
he was subjected to such treatment by the defend
ant or by any one else. If he was not dismissed*
but quit the employment — no matter for what
reason — he was not entitled to recover for any
service not actually rendered.

Exception No. 53 (Trans., folio 695) was to the
refusal of the Court to instruct the jury as follows:
" This is not an action to recover damages for
" breach of the contract set out in the complaint.
'" It is to recover for services claimed to have been
" performed under that contract, and it is there-
" fore necessary, in order to find for plaintiff, to
41 find that he actually rendered the service."
This was but stating that in order for the plaintiff
to recover he must have satisfied the jury of th«
truth of the allegations of his complaint. >

Exception No. 56 (Trans., folio 700) was to the
refusal of the Court to instruct the jury as follows:
•" If you find from the evidence that after the

" making of the agreement set out in the com-
" plaint, the plaintiff entered into or engaged in
" directly or indirectly, any other mercantile or
" manufacturing business, then I instruct you that
11 when he so entered into or engaged in said busi-
" ness, he violated the agreement."

The agreement contains this provision: " The
" said Stone agrees not to enter into or engage in
" directly or indirectly any other mercantile or
" manufacturing business, or to any other business
" or occupation which shall in anywise absorb his
" mind or strength or interfere with his interest
" or efforts on behalf of this History Company, for
" said term of ten years." There was testimony
tending to show that he had entered into a mer
cantile and manufacturing business with Miller.
The proper construction of this provision of the
agreement is that plaintiff should not engage,
directly or indirectly, in any other mercantile or
manufacturing business of any kind, and that he
should engage in no other business which should
absorb his mind or interfere with his
efforts on behalf of the History Company.
He is not given the right to engage
in any other mercantile or manufacturing
business, even if it does not in anywise absorb his
mind or interfere with his efforts on behalf of the
company, but is absolutely prohibited from en
gaging in any such business. He may, under the

provisions of the agreement, engage in any other
occupation or business, except a mercantile or
manufacturing business, which does not in any
wise absorb his mind or interfere with his efforts
on behalf of the corporation. The business which
the agreement provided should be carried on was
a mercantile and manufacturing business. It is
quite clear that the parties intended that the
plaintiff should not engage in any other business
of the same character, and unless this be the
proper construction, the words "any other mer
cantile or manufacturing business " are entirely
without force or effect. In other words, if it had
been intended that plaintiff should have the right
to engage in any mercantile or manufacturing
business which did not absorb his mind or inter
fere with his efforts on behalf of the corporation,
the restriction would have been confined to "any
other business or occupation which should in any
wise absorb his mind," etc., which would have in
cluded mercantile and manufacturing business and
every other branch of business. In construing an
agreement every portion of it should be given
effect, if possible. That the Court below in de
clining to instruct the jury as requested construed
the agreement as if the words, " any other mer
cantile or manufacturing business " had been en
tirely omitted from it, is quite clear. 4

VII.

The verdict ivas against law.

The Court instructed the jury that if the services
rendered, were rendered for the History Company
and not for the defendant, then the plaintiff could
not recover against the defendant, yet all the testi
mony showed and the plaintiff himself admitted
and testified, that the services claimed to have
been performed by him, were performed for the
History Company and not for the defendant.

The judgment and the order denying defend
ant's motion for new trial should be reversed.
Respectfully submitted,

EDWARD J. McCUTCHEN,

Attorney for Appellant*

Due service of the within is hereby admitted
this day of ^895.

Attorney for

No.

IN THE

SUPREME COURT

OF THE

STATE OF CALIFORNIA.

N. J. STONE,

Plaintiff and Respondent,
vs.

H. H. BANCROFT,

Defendant and Appellant.

Respondent's Points and Authorities,

REDDY, CAMPBELL & METSON,

Attorneys for Respondent.

Filed this day of .., A. D. 189

T. H. WARD, Clerk.

By Deputy Clerk.

JAMES H. BARRY, PKINTHK, 439 MONTGOMHRV STREET, SAM FRANCISCO.

IN THE SUPREME COURT

OF THE

STATE OF CALIFORNIA.

N. J. STONE,

Plaintiff,

vs.
H. H. BANCROFT,

Defendant.

STATEMENT OF FACTS.

This action is brought, upon a written con
tract, a copy of which is set forth in the com
plaint, for fourteen months' salary at the rate
of three hundred and fifty dollars per month,
commencing on the 1st day of July, 1892,
amounting in the aggregate to the sum of four
thousand nine hundred dollars.

The defendant interposed a demurrer to the
complaint, which was overruled.

The defendant answered and admitted the

due execution of the contract, and that the
amount sued for had not been paid, and denied
his liability for the payment thereof upon
three grounds:

First. That defendant was not personally
liable to the plaintiff on the contract for the
salary sued for, but that the same was payable
out of the earnings and profits o? the History
Company.

Second. That the plaintiff, on his part, did
not keep and perform the terms and conditions
of the contract.

Third. That the defendant, on his part, did
perform all the terms and conditions of the
contract.

The first defense involves the construction
of the written agreement, and presents a pure
question of law.

The second and third defenses give rise to
questions of fact.

These are the only issues presented by the
pleadings.

The jury rendered a verdict in favor of the
plaintiff and against the defendant, upon which
verdict the Court rendered judgment.
Trans., pp. 15-16.

The defendant moved for a new trial. The

motion was denied, and from the judgment and
order the defendant has taken this appeal.

RESPONDENT'S POINTS AND AUTHORI
TIES.

INTERPRETATION OF AGREEMENT: THE DEFEND
ANT IS PERSONALLY LIABLE TO THE PLAINTIFF ON
VTHE CONTRACT, FOR THE PAYMENT OF THE SALARY
MENTIONED THEREIN.

The defendant and the plaintiff were the
only parties to the contract.

It is an elementary principle that "both were
bound, each to perform his part of the agree
ment. Neither party pretended to bind any
body but himself.

The execution of the agreement superseded
all the oral negotiations or stipulations con
cerning its matter, which preceded or accompa
nied the execution of the instrument.

C. C., Sec. 1625.

The language of the contract is clear and ex
plicit, and should therefore govern in its inter
pretation.

C. C., Sec. 1638.

It is a contract of employment.
C. C., Sec. 1965.

The recitals contained in the instrument are
conclusive of the facts therein recited. These
show that Mr. Bancroft had heen engaged in the
business mentioned for a considerable length
of time, and had carried it on under various
names, but latterly under the name of the His
tory Company, and that Mr. Stone had conducted
the business for him ; that Mr. Bancroft appreci
ated the value of the services of Mr. Stone, and
desired to acquire them by an agreement for a
period of ten years; and, in consideration of
the valuable services already performed by
Mr. Stone, Mr. Bancroft sold and assigned to
Mr. Stone a one-tenth interest in said History
Company, and its plates, paper, stock, etc.,
upon the conditions set forth.

Trans., pp. 4, 5. and 6, fols. 6-10 inclu
sive.

All that is required of Mr. Stone under the
contract is that he shall devote his whole time
and best energies, for a period of ten years, to
the business mentioned.

The grant of the property mentioned, as will

be seen, was upon condition subsequent, and
the salary of three hundred and fifty dollars
per month was dependent upon the perform
ance of the services required.

The services were to be rendered to the His
tory Company, but the History Company be
fore the execution of the agreement was a
myth. There was no company. Mr. Bancroft
was the real party, and he used the name of
the company in conducting his own business,
and after the agreement and up to the time of
the incorporation of the History Company,
Bancroft was the owner of ninety per cent, of
the business and property, and an agreement
to render services to the History Company, was
an agreement to render services to Bancroft
himself.

The contract was not one of partnership, but,
as above stated, was one of employment, by
which Mr. Stone, for the consideration named,
agreed to render his services to the History
Company.

All that had been transferred or promised to
Mr. Stone was in the way of compensation for
services which had been and were to be ren
dered.

It was not the intent of the parties to become co
partners or to conduct the business as such.

The agreement shows that the so-called His
tory Company was to be incorporated.

Upon incorporation ten shares of stock were
to be delivered to Mr. Stone, in lieu of the in
terest conveyed by Mr. Bancroft.

It was not the intention to convey a one-
tenth interest in the History Company and
property mentioned, and ten shares after cor
poration.

Whether so or not, the fact that the Com
pany was to be incorporated and shares of
stock issued shows that they did not intend to
conduct the business as co-partners.

Therefore, Mr. Stone and Mr. Bancroft did
not associate themselves together prior to the
incorporation, for the purpose of carrying on
the business together and dividing the profits
between them, in the sense of Section 2395 of
the Civil Code.

Assuming, for the purpose of argument, that
the agreement was one of co-partnership at the
time of its execution, and that the partnership
was to continue until the incorporation, it was
competent for Mr. Bancroft to agree to pay his
co-partner three hundred and fifty dollars per

month, for devoting his entire time and atten
tion to conducting the business, and it would
create a personal obligation on the part of Mr.
Bancroft to pay that salary, and upon such an
agreement Mr. Bancroft would be liable, even
though the concern should never realize a
dollar, and even though its entire capital
should be lost.

It is not stated in the agreement that the
three hundred and fifty dollars should be paid
out of the capital, earnings, or profits of the
alleged partnership.

To make the salary payable out of the funds,
earnings, or profits of the concern, would be at
least to reduce the salary of Mr. Sfone, and, if
the concern should not be successful, might de
prive him of any salary at all.

A partner has a right to maintain an action
against a partner upon a contract of this kind,
as he would have upon a promissory note.

He had no cause of action against the cor
poration, not having any contract with it.

The contract is between Mr. Stone and Mr.
Bancroft, requiring Mr. Stone to render his ser
vices to the History Company.

" If A contracts with B to make a coat for C,
" A must pay for it, though C wears it."

Addison on Contracts, Vol. 1, 3rd Am.

Ed., Sec. 38, p. 72; 8th Ed., p. 70.
C. C., Sec. 1965.

The contract of Mr. Bancroft created no obli
gation on the part of the History Company to
pay the salary. If the History Company had
never been incorporated Mr. Bancroft would
have been liable on the contract.

Mr. Bancroft had entire control of the His
tory Company before its incorporation, and its
officers after incorporation. Before incorpora
tion he could have dissolved the alleged part
nership and could have closed the business at
any time, but that would not release him from
his obligation on the contract.

The corporation might fail in business. It
might be dissolved and go out of existence, and
upon proceedings for a dissolution the claim of
Mr. Stone for salary could not be regarded as a
debt of the corporation.

Who then would be liable for his salary, or
for a breach of the contract of employment?
We apprehend that it- would be Mr. Bancroft,
the other party to the contract.

It is contended by counsel for the appellant
that the salary is payable by the History Com
pany.

9
Appellant's Brief, page 14.

We have already shown that Mr. Stone had
no contract whatever with the History Com
pany and that the corporation was not liable
to him.

Nor was he authorized to pay himself out of
any money belonging to the corporation.

It is contended by counsel for appellant
(appellant's Brief, page 14, 1st paragraph),
" That defendant did not undertake to pay the
" plaintiff the salary stipulated in the agree-
" ment, and both plaintiff and defendant
" agreed that plaintiff's salary should be $350
" per month, which salary was of course, to be
" paid by the History Company."

Of course an agreement might have been
made between the plaintiff and the defendant,
that the plaintiff should rely upon the earnings
of the corporation for his salary, provided the
corporation would sign it, but the difficulty in
this case is, that they did not make that kind
of an agreement.

Counsel, however, say that of course it was to
be paid by the History Company, but neither
the parties nor the History Company agreed
that it should be so paid.

There is not a word in the agreement which

indicates or intimates that the History Com
pany, should pay any part or portion of the
salary named in the agreement.
. The language is: " The salary of said Stone
ls shall he three hundred and fifty dollars per
" month."

There is no reference to payment out of any
fund, or by any party except H. H. Bancroft.
Can that language be regarded as a stipula
tion that he should look for payment to any
fund or to any person other than Mr. Ban
croft?

Mr. Stone agreed to render his services in the
manner required by the contract, and that is
all he stipulated to do, and all other parts of
the agreement were stipulations and promises
on the part of Mr. Bancroft.

Can it be contended that the language used
was not an assurance and agreement on the
part of Mr. Bancroft that Mr. Stone should re
ceive three hundred and fifty dollars per
month?

Was it not a promise that he should be paid
that amount? Is there any difference between
saying, " the salary of the said Stone shall be
" three hundred and fifty dollars per month,"
and saying, " the said Stone shall be paid

" three hundred and fifty dollars per month?"
In the hitter ca*e would any one contend that
Mr. Bancroft was not liable for the payment?

If Mr. Bancroft had said: " I hereby employ
" N. J. Stone as manager of the History Com-
;< pany, for the period of ten years, and the
<l salary of the said Stone shall be three hun-
" dred and fifty dollars per month," could
such language be construed to mean that the
History Company was to pay it and that Mr.
Bancroft was not?

Counsel proceed (Brief, page 14. last clause
of first paragraph): " It will hardly be ques-
" tioned that from the date of the agreement,
" the parties were to share in the profits and
'* losses of the business in proportion to their
" respective interests."

The answer to this is, that the written agree
ment contains no such provision. Nor do we
think that it can be fairly implied from any
language contained therein that Mr. Stone was
to share in the losses of the business in pro
portion to his interest.

But even if he was, it would make no differ
ence in his right to recover three hundred and
fifty dollars per month from some one. The
only question is whether he could recover that

salary from some one who had not entered into

any contract with him, or from some one who
had.

It.

THE DEMURRER TO THE COMPLAINT WAS
PROPERLY OVERRULED.

It is contended by the appellant (Appellant's
Brief, page 11), that the demurrer interposed
by the defendant should have been sustained:

" First. Because the complaint did not state facts
" sufficient to constitute a cause of action."

We do not see how this contention can be
supported. The contract is between the plain
tiff, Stone, and the defendant, Bancroft. The
parties agreed upon the amount of salary to be
paid. The language of the agreement is, " The
" salary of the said Stone shall be three hun-
" dred and fifty dollars per month."

If the contract had expressly provided that
the services were to be rendered directly to Mr.
Bancroft, and the contract contained the same
language, could there be any question as to
the liability of Mr. Bancroft to pay the
salary?

The fact that the agreement required that

the services were to be rendered to a third per
son does not alter the case.

Addison on Contracts, Vol. 1, 3rd Am.

Ed., Sec. 38 p. 72.
Addison on Contracts, Vol. 1, 8th Ed.,

p. 70.

C. C., Sec. 1965.
Craig vs. Fry, 68 Cal., 363.

The corporation might receive the benefit of
the services, and yet Mr. Bancroft, by reason
of his written promise, be liable for the pay
ment of the salary.

In this case, however, at the time of the ex
ecution of the agreement, Mr. Bancroft was the
owner of ninety per cent, of the property and
business In fact, there was no one to be bene
fited at that time but Mr. Bancroft.

The complaint stated a cause of action. It
is shown by the agreement and by the allega
tions of the complaint that the plaintiff had
performed, and that the defendant had refused
and neglected to perform, and that defendant
had failed to pay, from a certain date, the
salary agreed upon.

" Second. That the complaint was ambiguous,
1 unintelligible and uncertain, in that it did not

" appear whether the corporation referred to in the
" agreement was ever formed or not.'1

That could make no difference as to the lia
bility of the defendant.

The plaintiff could not perform the services
for the corporation until after incorporation.

The service was to begin at the date of the
agreement and the plaintiff was to serve the
then so-called History Company until the in
corporation. If the company was never incor
porated, it could not affect the agreement be
tween the plaintiff and the defendant.

" Third. That it did not appear what services
'' were performed by plaintiff."

The allegation in the complaint that the
plaintiff had faithfully performed the terms
and conditions of the contract, on his part to
be kept and performed, was a sufficient allega
tion of performance by him.

The agreement set forth in the complaint
showed clearly what he was to do. and taking
this with the allegations of performance, there
could be no uncertainty or ambiguity as to
what services were to be performed.

" Fourth. That it did not appear from the
" complaint whether the services were performed for
" the defendant or for the History Company ."

The agreement set forth in the complaint
and the allegation of performance were quite
sufficient to inform the defendant upon this
point.

In support of his demurrer, it is stated by
appellant (Appellant's Brief, page 11):

' It is to be remembered that the action is

' not for the breach of the contract, and that

;' the complaint does not allege any damage,

4 but, on the contrary, it alleges performance

:' of the agreement for which the plaintiff

" claims a stipulated compensation."

We agree with counsel that it is not an
action for breach of contract, in the general
sense, but it is an action on the contract
for the amount due thereon and remaining
unpaid.

The contract is still in force and the plain
tiff is under obligation to obey a call to per
form his duties thereunder.

The salary was to be paid monthly. Sup
pose there was no question whatever about per
formance on the part of the plaintiff, or on the
part of the defendant, except as to the pay
ment of the salary. Would not the plaintiff
have the right at the end of each and every
month to demand his salary under the terms

of the agreement; and, if refused, would he not
have the right to bring suit therefor, or would
he have to wait until the end of the term,
namely, ten years, before he could draw any
salary, or enforce its payment?

III.

THE PLAINTIFF ON HIS PART FULLY AND FAITH
FULLY KEPT AND PERFORMED ALL THE TERMS AND
CONDITIONS OF THE CONTRACT.

The defendant directed the election of the
plaintiff as vice-president and director of the
corporation, in order to enable him to manage
and conduct the business referred to in the
agreement.

A by-law of the History Company, adopted
immediately after its incorporation, to which
the defendant assented in writing, fixed the sal
ary of the vice-president at three hundred and
fifty dollars per month.

This was all under the direction of the de
fendant, and was a means adopted by him to
place the plaintiff in a position to manage and
conduct the business referred to in the agree
ment.

This did not cancel the contract between the
plaintiff and the defendant.

The corporation and its officers were the
agents of Mr. Bancroft. Every act of the cor
poration and its officers was directed by him.

The salary which he agreed to pay he caused
to be paid by the corporation up to the 1st day
of July, 1892, and after that date he ordered
the Treasurer of the corporation not to pay the
salary, which orders were fully obeyed.

It made no difference to the plaintiff who
paid his salary, but after the date last men
tioned the corporation, under the direction of
the defendant, ceased to pay him his salary,
and refused to accept his services, and plaintiff
was then compelled to look to his contract with
the defendant.

The plaintiff faithfully performed the duties
assigned him as long as he was permitted to do
so. This was shown by the fact that $90,000
in dividends were paid in 1888; $105,000 in
1889; $85,000 in 1890, and sufficient in 1891 to
make the total amount of dividends, together
with two of $5000 each that were declared in
1892,$290,000.

Trans., pp. 22-3, fols. 60-2.

After the plaintiff was deposed from the
office of Vice-President and prevented from

conducting and managing the business, as he
had theretofore, no dividends were ever made
or declared.

Trans., p. 80, fol. 234.

The plaintiff did not quit the service of the
defendant or of the History Company, and
never refused to perform the services required
by the contract; but, on the contrary, called at
the office of the company regularly for months,
prepared to discharge his duties.

After May, 1892, the plaintiff, visited the
office of the Company and attempted to dis
charge his duties, and continued to do so up to
the 31st of December, 1892.

Trans., p. 34, fol. 94.

In July, 1892, the plaintiff being at the
office, went into the room of the defendant to
speak to him, but was pushed out of the door
by the Vice-President in the presence of the
defendant.

Trans., p. 31, fol. 86.

The plaintiff, on the 31st day of December,
1892, visited the office of the Company, for the
purpose of performing his duties, but was pre-

vented from doing so. He made application
repeatedly to both Dorland and Morrison, Sec
retary and Vice-President respectively, for in
structions as to what he should or should
not do.

He was informed by Morrison that he had
no right there. Dorland informed him that he
had been instructed to take away the letters
from him.

Trans., pp. 34-5, fols. 94-7.

It was impossible for the plaintiff to do any
work for the reason stated by him.

Trans., p. 35, fol. 99.

Where the plaintiff says:

" I ceased to go there for the reason that my
" desk was taken up stairs, and kept there for
" several days, and then brought down again,
" and put in the center of the aisle, where
" I could only stand up by it, and it was put
" where I couldn't get any light, or put a chair
" to sit upon by it, and in a draft from the
" door. I could not do any work there where
" the desk was put, because there was no chair
" there, and I could not work because I had
'' nothing to work with. I couldn't see, and it

" was in the draft from the door. There was
" not sufficient light, either artificial or natural,
" to permit a person to write or to see their
" writing. When I found that condition of
" things, I quit going there, but before, doing
" so, about that time, I went up and served
'' notice upon Mr. Borland, a verbal notice.''

Trans., p. 36, fols. 100-2.

" I demanded of him that he permit me to
go to work, to make a place for me to go to
'' work under my contract, the contract with
" defendant. That I was there for that pur-
" pose, and I wished him to distinctly under-
" stand that I was ready and willing at all
'' times to perform my duties under the con-
<l tract, and had always been ready and willing
" to go to work. I have not engaged in any
" other business since that time, until recently
'' — the middle or latter part of 1893. It was
" such business that i was always ready, and
11 am now, to perform the contract. 1 have
" abandoned the business I engaged in. I have
" not bean able to realize a dollar from it. I
'• gave this notice to Mr. Dorland in the latter
'' part of December, and the latter part of Jan-
" uary. I repeatedly told him that 1 was ready

'' to do the work, but I took a witness on this
" occasion with me, a Mr. Drew, who took the
'' conversation down in shorthand/'

" Borland said (Trans., p. 37, fol. 103), he
" had been instructed by defendant not to let
" me have the correspondence and not to per-
" mit me to do any work there. He was Sec-
" retary and Treasurer of the History Com-
" pany, and owned ten shares of the stock. He
" was under the direction of the defendant."

The testimony of the plaintiff shows (Trans.,
p. 33, fol. 92), that he faithfully performed his
duties up to May, 1892, and his efforts and at
tempts to perform such duties ever since.

This fact is also shown by the letters of Mr.
Bancroft.

Trans., p. 182, fols. 539-40; p. 183, fol.
542; p. 185, fol. 549; p. 186, fol. 550;
p. 188, fols. 556-8; pp. 191-3, fols.
556-72.

IV.

PLAINTIFF DID NOT VIOLATE THE CONTRACT BY
'ENGAGING IN OTHER BUSINESS.

The evidence shows that the plaintiff did not,
on the 1st day of July, 1892, or at any time,

engage in carrying on and conducting for him
self and others, in opposition to the History
Company, a business of the same kind and
character as that carried on by the History
Company.

It does not appear that the literary work of
the Femina Company was in the same field as
that of the History Company, or that it con
flicted in any way with its business.

The testimony of the plaintiff is that he
never realized a dollar from it.

Trans., p. 36, fol. 101.

The plaintiff also testified: (Trans., p. 59,
fol. 171): " Any day in the world when the
" History Company called upon me to come, 1
" was ready to go; yes, I said I hoped to be
'' free, and 1 hope so still."

The plaintiff testified in relation to the bus
iness with Dr. Miller:

" I was simply engaged in negotiating about
" the business, and was about to enter under a
" contract, and during the negotiations I had
4< purchased some things and become liable for
u them under the expectation of making a
" contract with him. I never did complete
" any contract with him, and at a certain stage

' of the negotiations, I concluded not to enter
" into the business or any engagement, and

' having reached this conclusion I signed some

' papers, the drawing of which I entrusted to
" my attorney and the attorneys for Miller, and
" the papers that are introduced here are what

* I was requested to sign by iny attorney and
" others, and that is the reason I signed it,
" trusting in their judgment to protect me
" from all liability in my negotiations."

Trans., p. 71, fols. 206-7.

The bringing of the suits by the plaintiff
against the History Company, referred to
(Trans., p. 72, fols. 210-12), is not material upon
the question of the liability of the defendant,
for neither the opinion of the plaintiff or that
of the defendant, as to the effect of the agree
ment, is of any consequence whatever, where
the written agreement is clear and explicit
upon the point.

The plaintiff testified (Trans., p. 58, fols. 167-
8): "While I was at work on this book of
" ' Femina,' I considered the contract set out
" in the complaint in this action as binding
" upon me I considered that the History
" Company was entitled to call on me at any

" time. I have always been ready, and am
" ready to-day, to render services, and consider
" that the History Company was entitled to
" call upon me any day to perform services as
" manager for it, and it was so understood by
41 Dr. Miller, that I would make no arrange-
" ment with him that was not subject to the
'' call of the History Company. I considered
" that all the time 1 was with him this contract
" was remaining in full force and effect for its
'' full term, and that the History Company was
" entitled to call upon me at any time."

There was no violation of the contract on
the part of the plaintiff by reason of his rela
tions or business with Dr. Miller. It was all
subsubject to the contract in question.

So long as the defendant or the History
Company did not require the services of the
plaintiff, or declined to receive them, he could
not force either to accept them, but the defend
ant could not, by causing the History Company
to decline the services of the plaintiff, relieve
himself from the obligation to pay the salary
as it fell due, so long as the plaintiff was ready
and willing to perform.

25
V.

THE DEFENDANT DID NOT PERFORM HIS PART OF
THE CONTRACT BUT WILLFULLY PREVENTED THE
PLAINTIFF FROM ACTUALLY RENDERING THE SER
VICES DESCRIBED IN THE AGREEMENT.

The property conveyed by Mr. Bancroft to
Mr. Stone, and the shares of stock to be de
livered, were upon condition that if the said
Stone should fail in any wise to carry out the
agreement or any part thereof, in its full letter
and spirit, then the property so conveyed was
to be forfeited arid to revert to the said defen
dant.

The evidence shows that after the dividend
of $90,000 had been paid in 1888, the defend
ant, having full control of the corporation and
the management of its officers, began to inter
fere with the plaintiff and prevent him from
discharging his duties as prescribed by the
agreement.

Trans., p. 23, fols. 63-5.

The acts of the defendant, his treatment of
the plaintiff, his efforts to prevent him from
discharging his duties, and his directions to
the officers of the corporation and knowledge

of their conduct towards the plaintiff, appear in
the Trans., pp. 23-38, inclusive.

On the 15th of May, 1892, the defendant
commenced a suit under the forfeiture clause
contained in the agreement to recover the
stock conveyed by the defendant to the plain
tiff mentioned in the agreement, and the divi
dends which the plaintiff had received thereon,
and charged the plaintiff with a violation of
the agreement.

Finding the suit unavailing, he dismissed
the same and nothing more has been heard
of it,

Trans., p. 30.

Almost every means within the power of the
defendant, and he was seemingly all-powerful,
were used to prevent the plaintiff from per
forming his part, of the agreement and com
pelling him to quit the service, in order that
the defendant could -enforce the forfeiture
clause of the agreement against him.
. The deiendant was responsible for the acts
of the corporation and its officers, because they
were but the agents of the defendant for the
purpose of carrying on his own business.

The officers and servants of the corporation,
with the knowledge and consent of the defend-

ant, and b}^ his direction, were impertinent and
insulting, and tried in every way to prevent
the plaintiff from performing his duties.

The defendant actually participated in some
of these acts, and it is plain that many of the
acts of the corporation servants and agents
were with his consent, and under his actual
direction.

The plaintiff informed the defendant of the
treatment which he received at the hands of
the corporate officers, and their interference
with him in the performance of his duties.

The testimony of every witness called on the
part of the plaintiff shows the indignities
which were heaped upon the plaintiff, and that
it was impossible for him to manage and con
duct the business under the circumstances.

The evidence shows that the plaintiff was, by
the direction of the defendant, deposed from
his position as Vice-President and manager of
the business, and that others were put in his
place.

Trans., pp. 70-1, fols. 202-5.

It is evident that the defendant did not in
tend to make any order, either dismissing the
plaintiff from his service, or the service of the
History Company.

His plan was to force the plaintiff to quit or
commit a breach of the contract, so that the
defendant could take advantage of the forfeit
ure clause of the agreement, and this purpose
is also shown by the suit above referred to.

He never did dismiss or discharge the plain
tiff.

Trans., p. 81, fol. 230.

See the testimony of the defendant (Trans.,
p. 172, fols. 508-9), where he says:

" I never discharged or dismissed the plain-
" tiff from the service of the History Company.
" That question never came up."

The plaintiff was present at a meeting of the
Board of Directors in November, 1892, when
an assessment was levied.

Morrison, in the presence of the defendant,
arose to put the plaintiff out of the room. He
opened the door, stood by the plaintiff, and at
tempted to put his hand on him. Plaintiff said
he had as good a right to be there as Mr. Mor
rison, whereupon the question was referred to
the defendant, who said that he (Morrison)
could throw plaintiff out of the window as far
as he, defendant, was concerned.

Trans., p. 33, fols. 90-1.

The order levying the assessment having
been passed, the defendant, with others, started
to leave the room, but defendant came back
and said to the Secretary of the History Com
pany, namely, Mr. Borland, "Uon't you pay
" any attention to that thing sitting over there
" in the corner," and went out of the room.

Trans., p. 33, fol. 92.

The treatment which the plaintiff received
at the hands of the defendant and officers of
the corporation was hardly such as would be
expected by a man who was to conduct the
business of the concern.

Not only were his offers to perform refused,
but positive orders were given not to permit
him to do any work there.

From the evidence in the case, can there be
any doubt or question as to the purpose and
intent of defendant to prevent the plaintiff
from performing his part of the agreement,
and to take advantage of the forfeiture clause
and avoid the payment of the salary?

VI.

PERFORMANCE.

An offer in good faith to perform on the
part of the plaintiff is equivalent to per
formance, where the services were declined or

refused, or performance prevented hy the de-

fend ant.

The defendant and the History Company
had a perfect right at any time to decline the
services of the plaintiff. That would not re
lease the -defendant from his obligation to pay
the salary for the term agreed upon. He would
have the right, however, to call upon the plaintiff
at any time to resume the performance of his
duties. The plaintiff did not quit, hut simply
obeyed the order of the defendant and the His
tory Company, but at the same time both were
informed that he was always ready and will
ing to perform any services that might be re
quired of him.

Simply declining for a time to accept the
service would not be a breach of the contract
or give the plaintiff a cause of action. The
plaintiff was never notified by the defendant
that he was relieved from his obligations under
the contract and that his services would not be

required in the future, and hence was bound to
hold himself in readiness to perform them un
der penalty of the forfeiture of his stock and
perhaps the dividends which had been paid
thereon.

Mr. Bancroft testifies that he never did dis
charge the plaintiff.

Trans., p. 172, fols. 508-9.

The plaintiff testifies that he never quit, but
was always ready and willing to perform. The
mere fact that his services were declined for a
time did not terminate the relation of the de
fendant as employer, or release him from his
obligation to the plaintiff.

The ease of Webster vs. Wade, 19 Cal., 292, we
think is decisive of this case.

If the defendant did discharge, or if his con-
duet and treatment could be regarded as a dis
charge of, the plaintiff, before the termination
of the term of service mentioned in the con
tract, he would still be liable for the salary
agreed upon.

Webster vs. Wade, supra.

The questions of fact — namely, whether the
plaintiff performed, or whether he was pre-

vented from performing by the defendant —
were passed upon by tbe jury, and we contend
that the evidence was ample to support the
verdict upon those questions.

If there was a substantial conflict in the evi
dence upon these points, the rule is well set
tled that the verdict of tbe jury and the order
of the Court denying the motion for a new
trial are conclusive.

VII.

SUCCESSIVE ACTIONS ON THE SAME CONTRACT.

Successive actions may be maintained upon
the same contract or transaction whenever,
after the former action, another cause of action
arises therefrom.

C. C. P., Sec. 1047.

When several claims payable at different
times arise out of the same contract or trans
action, separate actions can be brought as each
liability accrues.

Am. & Eng. Ency. of PI. & Prac., Vol. I,
pp. 154-5, notes 1 and 3.

In this case the plaintiff had the right to

maintain an action for eacli month's salary
after it became due, and to join several of
such causes in one action. Otherwise, he
would be compelled to wait for his salary until
the end of the term — ten years.

THE ORDER DENYING DEFENDANT'S MOTION
FOR A NEW TRIAL SHOULD BE AFFIRMED.

DEFENDANT'S EXCEPTIONS.

Exceptions J¥os. 1 and 2 (Trans., pp. 19 and 20).
This testimony, if error, was harmless. It
was not erroneous, but simply explained the
relations of the parties prior to the execution
of the agreement. The work done by Mr,
Stone before that time is expressly referred to
therein, and this testimony simply gave some
of the details. It gives the record of the
History Company, the duties assigned to the
plaintiff under the contract, in what capacity
he acted, and when he was superseded.

Exception No. 3 (Trans., p. 22, fol. 60).

The evidence sought by the question tended
to prove performance on the part of the plain
tiff, and shows the motive on the part of Mr.
Bancroft to prevent such performance and to

take advantage of the forfeiture clause of the
agreement.

The special ground of objection made by
counsel was that it would make no difference
whether the corporation paid dividends or
whether the business was a profitable or a los
ing one.

If the theory of counsel is correct, that the
plaintiff was to be paid out of the profits or
earnings of the corporation, the testimony is
favorable to the appellant, and therefore could
do him no harm.

Exception No. 4 (Trans., p. 23, fol. 63).

This exception is not well taken. The testi
mony was direct upon the question of perform
ance by the plaintiff, and prevention of per
formance by the defendant.

Exception No. 5 (Trans., p. 24, fol. 65).

The question related to the conduct of the
defendant in preventing the plaintiff from per
forming his contract.

The plaintiff had the right to perform his
duties in the ordinary way, and any act of the
defendant tending to obstruct him was relevant
to the question of performance.

Exceptions Nos. 6 and 7 (Trans., pp. 26-7, fols.
71-3).

The question related to the application of
the plaintiff to Mr. Borland, the secretary and
treasurer for the payment of his salary. The
objection was upon the ground that the reply
of Mr. Dorland was not binding upon the cor
poration.

The corporation was a mere agency for the
transaction of the defendant's business. He
was the president and had full control. Its
officers were under his direction. The treas
urer was his agent and obeyed his orders. It
appears that when directed to pay the salary
of the plaintiff he did so, and when directed
not to pay it, he obeyed that order.

All the evidence shows that he was acting
under the orders of the defendant, and was his
agent.

The matter of paying or refusing to pay was
within the scope of his duties as treasurer of
the corporation and as agent of the defendant,
and his statements concerning payment or re
fusal to pay, made at the time, are binding
upon his principal.

Greenleaf on Evidence, 14th Ed., Vol. I,
Sec. 113.

Green vs. Ophir C. S. & G. M. Co., 45

Gal., 522.
Tait vs. Hall, 71 Gal., 150.

If error, it was harmless. It is admitted
that both the corporation and the defendant
refused to pay.

The defendant moved to strike out the fol
lowing answer as being a conclusion of the wit
ness, and on the further ground that the de
fendant was not bound by it unless he gave
the direction.

Trans., pp. 26-7, fols. 72-3.

(A.) The boy in the office was forbidden to

keep any letters for me.

This, in our opinion, is not a conclusion of
the witness, but a plain statement of fact.

The ruling of the Court upon the question
was proper.

C. C. P., Sec. 1834.

The evidence subsequently admitted in the
case proved conclusively that the defendant
directed the action of all the servants and
agents of the corporation. The evidence is
direct and overwhelming that the defendant

did prevent the plaintiff from performing his
duties, and therefore this particular part could
do the defendant no harm.

Exception No. 8 (Trans., p. 29, fol. 80).

The evidence was direct, and the conduct of
the defendant towards the plaintiff in the mat
ter of performance was relevant. If error, it
was harmless, for it was on a point upon which
the evidence is overwhelming.

Exception No. 9 (Trans., p. 31, fol. 85).

This exception is on the same footing with
Exception No. 8.

Exceptions Nos. 10, 11, and 12 (Trans., p. 31,
fol. 87).

The questions were relevant to the motive of
the defendant to drive the plaintiff out of the
corporation, to acquire his stock, to force him
to quit the service of the defendant and the
corporation and prevent him from performing
his contract.

Exception No. 13 (Trans, p. 34, fol. 96).

Mr. Morrison was the Vice-President and Dor-
land was the Treasurer of the corporation, and
the acts and statements of the Vice-President

and Treasurer were binding upon the corpora
tion within the scope of their duties.

Greenleaf on Evidence. 14th Ed., Vol. I,

Sec. 113.
Green vs. Ophir C. S. & G. M. Co., 45 Gal.,

522
Tail vs. Hall, 71 Gal., 150.

Both of these officers were the agents of Mr.
Bancroft. Mr. Bancroft directed them, as shown
by all the evidence in the case. It is harmless,
because it is admitted throughout that the cor
poration and the defendant declined and re
fused to accept the services of the plaintiff.

The ruling of the Court was proper under
Section 1034 of the Gode of Civil Procedure.

Exception No. 14 (Trans., p. 37, fol. 103).

This exception stands upon the same ground
as Exception No. 13.

Exception No. 15 (Trans., p. 37, fols. 104-5).

The question was proper. It tended to show
the relation between Borland and the defend
ant and the statements of Borland were bind
ing upon the defendant.

See authorities last above cited.

Exception No. 16 (Trans., p. 39, fol. 111).
This exception was not well taken. The ob
jection was that the testimony was irrelevant
and immaterial. It was an admission of Mr.
Bancroft, and related to the ability of the
plaintiff and his faithful performance of the
contract.

Exceptions Nos. 17, 18, 19, 20, 21 (Trans., pp.

72-85, fols. 209-251).

As these exceptions have not been referred to
in the appellant's Brief, we take it that they
have been abandoned.

Exception No. 22 (Trans., p. 86, fol. 252).

This was competent on the question of the
performance of the contract by the plaintiff.

Exception No. 23 (Trans., p. 106, fol. 311).

The question was material and relevant as
bearing upon the question of whether or not
the defendant prevented the plaintiff from
performing his contract.

Exception No. 24 (Trans., p. 110, fol. 323).

This question was relevant and material.
The conversations related to getting rid of Mr.
Stone and putting him out of the business.

Exception No. 25 (Trans., p. 113, fols. 332-8).

The question was relevant and material as
showing the purpose and conduct of Mr. Ban
croft with reference to performance by Mr.
Stone.

The same may be said of Exceptions Nos.
26, 27, 28, 29, 30, 31, and 32 (Trans., pp. 114-
120, fols. 336-352).

Exception No. 33 (Trans., p. 159, fol. 471).

The evidence was relevant and material to
contradict the witness and to show his rela
tions with the defendant.

Exception No. 34 (Trans., p. 203, fol. 602).

This exception seems to bo abandoned by
appellant, as no reference is made to it in his
Brief.

Exception No. 35 (Trans., p. 207, fol. 615).

This evidence was relevant and material to
contradict defendant and to show his feeling

against the plaintiff.

It shows his desire to embarrass the plaintiff
and his efforts to prevent him from performing
his duties under the contract.

Exception No. 36 (Trans., p. 209, fols. 621-4).

The plaintiff having called Dr. Miller, who
testified that plaintiff had not- paid him a cer
tain sura of money charged for personal ser
vices to plaintiff's boy, it was competent, rele
vant, and material for plaintiff to contradict
that testimony.

Exceptions Nos. 37 and 38 (Trans., p. 215, fol.
637; p 226, fol. 67-).

These exceptions seem to be abandoned, as
counsel make no reference to them in their
Brief.

Exception No. 39 (Trans., p. 227, fol. 673).

That part of the charge excepted to, we con
tend, correctly states the law.

Webster vs. Wade, 19 Cal., 292.

Exception No. 4Q (Trans., p. 227, fol. 674).

That part of the charge excepted to correctly
states the law. It was most favorable to the
defendant, and he was not injured thereby.

The instruction is supported by DeCamp vs.
Hewitt, 43 Am. Rep., 211.

Exception No. 41 (Trans., p. 228, fol. 676).

The exception is not well taken. The in
struction states the law.

Webster vs. Wade, supra.

Exception No. 42 (Trans., p. 229, fol , 680).

This instruction is also supported by the case
of Webster vs. Wade, supra.

Exceptions Nos. 48, 44. and 45 (Trans, pp 229-

230, fols. 681-684)

Are abandoned, as no reference is made to
them in counsel's Brief.

Exceptions Nos. 46, 47, and 48 (Trans., pp. 230-

231, fols. 684-685).

These exceptions are not well taken. The
rule of law is correctly stated in the charge. It
could not injure the defendant.

Exception No. 48 A.

We find no exception numbered in this way
in the Transcript, but identifying it by the
folio (Trans., fol. 687), we contend that the in
struction was properly refused. The question
of whether the agreement was fully performed
bv the defendant was one of fact.

Exception No. 49 (Trans., p. 232, fol. 688).

This instruction was properly refused by the
Court for the reasons stated. Neither the
agreement nor evidence warranted such an in
struction.

Exception No. 50 (Trans., p. 232, fol. 690).

This request was properly refused. It does
not state the law.

Webster vs. Wade, supra.
The instruction as modified was correct.

Exception No. 51 (Trans., p. 233, fol. 692.)

The request was properly refused and the in
struction as given by the Court states the law
most favorably for the defendant, and he could
not have been injured thereby.

Exception No. 52 (Trans., p. 234, fols. 694-5).

The request did not state the law. As mod
ified, the instruction was correct.

Webster vs. Wade, supra.

Exception No. 53 (Trans., p. 234, fol. 696).
The request does not state the law.
Webster vs. Wade, supra.

Exception No. 55 is not referred to in the Brief
of appellant, and therefore we presume it is
abandoned.

Exception No. 56 evidently was not the excep
tion referred to in appellant's Brief (page 46),
but from the folio we presume that Exception
No. 55 was intended. (Trans , pp 235-6, fols.
699-701).

The request does not state the law, but the
instruction as modified by the Court, stated
the law most favorably for the defendant, and
he was not injured thereby.

Counsel for appellant have made no refer
ence to the assignment of error contained in
the Transcript as to the insufficiency of evi
dence to justify the verdict, and we therefore
presume that it has been abandoned.

THE APPELLANT (BRIEF, PAGE 49) AS
SIGNS AS ERROR THAT "THE VERDICT
" WAS AGAINST LAW."

"All the testimony showed, and the plaintiff
" himself admitted and testified, that the ser-
" vices claimed to have been performed by him
" were performed for the History Company,
" and not for the defendant."

We think counsel is mistaken in saying that

all the testimony showed that the services were
performed for the History Company, and not
for the defendant.

The testimony of the plaintiff was as follows
(Trans., p. 36, fols. 109-101):

" I demanded of him (Borland) that he per-
' mit me to go to work, to make a place for
" me to go to work under my contract — the
" contract with defendant. That I was there
' for that purpose, and I wished him to dis-
' tinctly understand that I was ready and will-
' ing at all times to perform my duties under
' the contract, and always had been ready and
" willing to work."

See also Trans., page 48, fol. 137, where he
says:

"I looked at it as I was to receive that
" money under my contract. From the date
;< of the formation of the History Company
" down to 1892, the business was largely under
" my control."

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Full text of "N.J. Stone, plaintiff and respondent, vs. H.H. Bancroft, defendant and appellant ... E.J. McCutchen, attorney for appellant; Reddy, Campbell & Metson, attorneys for respondent"

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