BOREL, Appellant, v. FELLOWS QUARTZ MINING COMPANY, Respondent, 1 Cal. Unrep. 229

SAWYER, J. This is an appeal from a judgment of non-suit. Clearly the evidence does not support the first count for money loaned to the company. The resolution appropriating a sum “not exceeding thirty ’thousand dollars.” “from the first proceeds of the Fellows Mine,” to reimburse the amount expended by Franconi in improving and developing the mine, can, at most, only be regarded as admitting an indebtedness payable out of the first proceeds of the mine, and the whole admission must be taken together. There is no evidence to show that the sum due was otherwise payable.

But the resolution only appropriates a gross sum not exceeding the amount mentioned for the purpose designated, without pretending to aver that the full amount specified was actually due. The subsequent resolution of the stockholders introduced in evidence after reciting that the company “is indebted to L.

Franconi for building a mill and improving the mine,” authorizes the appointment of an agent to examine and report to the stockholders as to the condition of the mill and appurtenances and make and return an inventory of the property, etc., and authorizes the trustees to accept the same — ■ the mill evidently — and to issue notes of the company in favor of L. Franeoni payable to the order of Mathew Crooks and A. Borel in a sum not exceeding sixty thousand dollars, and provides that “the above amount or so much as may be necessary be disbursed- under the direction of Mathew Crooks and A.

Borel to pay existing debts and those accruing during, the ensuing nine months, etc.” These resolutions recite an indebtedness to Franeoni, but they give no clue to the amount. Whatever the amount, they, together with other existing debts, and debts to. accrue during the ensuing nine months, were to be paid out of the said sum of sixty thousand dollars. Admitting that these various resolutions of the trustees and stockholders together show that there was a legal liability of some kind, there is nothing to enable the court to guess even at the amount.

It was impossible upon the evidence to say that the plaintiffs were entitled to recover any particular sum. But it evidently was not contemplated by the resolutions that the notes should be issued for the payment of Franeoni until after the acceptance of the mill. The resolution is not therefore a recognition of the demand until an acceptance, and no acceptance or other proceeding is shown.

If the resolutions of the stockholders are regarded as recognizing the action of the trustees appropriating a sum not exceeding thirty thousand dollars as claimed by appellant, then the ratification is, according to the terms of that resolution, payable out of the first proceeds of the mine only, and the amount to be paid is also still left indefinite. It does not -appear that there was any proceeds of the mine. We think the judgment should be affirmed, and it is so ordered. We concur: Sanderson, C. J.; Shafter, J.; Currey, J.1; Rhodes, J.