5 S.D. 299 | S.D. | 1894
This action was by respondent, as plaintiff, to recover for services alleged to have been performed by him for the defendant company, as its superintendent, during the years 1890 and 1891, the number of days in each month being particularly stated, at five dollars per day, which, it was alleged, was a reasonable compensation, and which amount the defendant promised to pay. The answer denied ‘that the plaintiff was the superintendent of this defendant, or did or performed any work or labor for this defendant, since the 19th day of September, 1891. It admits that prior to the 19th day of September, 1891, the plaintiff did and performed some work and labor for defendant, the amount of which said work and labor so performed by the plaintiff for the defendant prior to September 19, 1891, was of the reasonable value of five dollars per day, but alleges the fact to be that said work and labor and services were not worth more than $2.50 per day.” The answer further alleged, as a counterclaim, that between the 1st day of September, 1885, and the 1st day of January, 1890, plaintiff had, as superintendent, wrongfully issued orders upon the treasurer of the defendant company, and procured their payment, in excess of the reasonable value of his services by $1.50 per day, such excess amounting in the aggregate to over $1,900; and, as a second counterclaim, that plaintiff had during such time wrongfully issued orders as aforesaid to himself, and procured their payment, for services claimed to have been rendered, at the rate of $5 per day, for 290 days, when in fact he rendered no services during such days. This claim amounts in the aggregate to $1,450. The counterclaims were denied in a
It is first alleged that the court erred in allowing plaintiff to testify as to the terms of an alleged contract of employment, without first showing that in making such contract the by-laws of the company in that respect had been complied with. Upon the introduction of oral evidence to prove such contract, defendant objected, ‘‘for the reason that the by-laws of the company required that contracts shall be in writing, and entered upon the minutes of the company, and there is no evidence that the contract was so made.” The objection was overruled. The by-law referred to was as follows: “No contract by any officer of the company shall be valid without the previous or subsequent ratification of the board of trustees.” There is nothing in the by-law requiring the contract to be in writing. At the second meeting of the defendant’s board of trustees held September 1, 1885, as appears from the minutes of the meeting, in evidence, the following action was taken: “Motion made and seconded that we appoint George S. Calkins superintendent of the Seabury-Calkins Con. Mining Co. Carried.” This, within the by-law referred to, sufficiently shows the employment of plaintiff by defendant as its superintendent. Defendant was not in position to require proof of the compensation agreed upon. The complaint alleges that defendant agreed to pay plaintiff $5 per day. It also alleges that plaintiff’s services were of the reasonable value of $5. The answer does not deny the agreement alleged, but only that the services rendered were of the reasonable value of $5, and alleged that they were not worth more than $2.50 per day. An allegation in a complaint that a party “agreed” to do a certain thing must be taken to mean that he agreed in a valid and legal manner. Jenkinson v. City of Vermillion (S. D ) 52 N. W. 1066; Stillwell v. Hamm, 97 Mo. 579, 11 S. W. 252; Marston v. Swett, 66 N. Y. 206; Swetland v. Barrett, 4 Mont. 217, 1 Pac. 745. It being alleged in the complaint that the company agreed to pay
.Passing now to defendant’s second counterclaim, we notice that by this counterclaim it was sought to recove; back money paid to plaintiff, at five dollars per day, for Sundays and other days, when it was claimed he did not work. Payments fully made for Sunday labor cannot be recovered on the ground of the invalidity of a contract for Sunday labor. The courts will neither assist in enforcing such a contract, nor in recovering what has been paid «under it, but will leave the parties where they have put themselves, they being in pari delicto. Broom, Leg. Max. 721; Moore v. Kendall, 2 Pin. 99; Foster v. Wooten (Miss.) 7 South. 501; Bish. Cont. § 627, and cases there cited. But, aside from Sunday labor, appellant and defendant insists that plaintiff has received pay for many days when the evidence shows he did not work. Assuming as correct the defendant’s theory, that, as superintendent, the plaintiff was only entitled to pay for days when the mines were being actually worked, and he was actively superintending the labors of the men thus employed, we do not think appellant’s theory of compensation upon the evidence is correct. If we understand his theory, it is that the greatest number of days in which any one man worked would necessarily be the greatest number of days for which the superintendent could rightfully charge; but obviously this would not be a safe basis for calculation, for while A. may
The only other assignment which requires specific notice relates to the exception by defendant to a portion of the judge’s charge to the jury. At the close of the charge the defendant’s attorney said: ‘ T desire to except to that portion of the court’s charge commencing with the words ‘There was some minutes introduced here,’ and from there to the end.” That portion of the charge included between the limits designated ‘ ‘from there
While we have not followed appellant’s assignments of error seriatim, we have endeavored to consider and discuss thh grounds upon which each and all rest. We discover no error which we think would justify us in reversing the judgment. The judgment is affirmed.