State v. Pacific Guano Co.

Opinion by

*610This case, as reported in 22 S. O-, at page 50, left open the amount and value of the rock for which the defendant was liable to account to the plaintiff. The case was referred to a referee, who took a mass of testimony which’ was reported to the court. The case was then heard by Judge Cothran, without a jury, who, finding the testimony “confused, discordant, and often unintelligible,” reached his conclusion as to the quantity of rock, as he states in his decree, by adding together the quantity claimed by the plaintiff’s counsel *611and that conceded by defendant’s counsel, and dividing by two. As to the value of the rock unmined, he says he arrived at that by getting the market value of the rock when sold, as shown by the testimony, from which he deducted the expense of preparing it for market, as shown by defendant’s “weekly statements,” and the remainder was the value of the rock “in its natural state and position.” Before adopting this statement, the Circuit Judge, after the adjournment of his court, submitted it to a skilled accountant, who certified to its substantial correctness with defendant’s books. On appeal by defendant, held—

1. That facts in a law case, whether tried by judge or jury, cannot be reviewed in this court. But where the judge submits the facts to a jury under erroneous legal instructions, or where he finds the facts himself by the application of erroneous legal principles, these errors may be corrected on appeal.

2. As the judge would have erred in instructing a jury that they might find a verdict by averaging the estimates of opposing counsel, so he erred in reaching his own conclusion of fact by that method.

3. In receiving the unsworn testimony of the accountant, the Circuit Judge erred in admitting incompetent and illegal- evidence upon a fact in issue.

Judgment reversed.