32 Mont. 416 | Mont. | 1905
delivered the opinion of the court.
This action was commenced in September, 1899, by the •filing of a complaint containing two causes of action. The first is for the recovery of $425.25, alleged to have been furnished by the plaintiff, Farrell, to the defendant company, and which amount the company promised to repay, but failed and neglected to do so. The second cause of action is for the recovery of $20. It is alleged that the defendant company was indebted to one Lepper in the sum of $20 as a balance for wages for work performed by Lepper for the company, and that Lepper sold and assigned his claim to this plaintiff, and that the same has never been paid. The answer is a general denial of all the material allegations of the complaint.
The court instructed the jury orally to the effect, that under the contract in evidence the plaintiff could not create any indebtedness against the defendant company in excess of the value of the concentrates on hand; and, further, that any agree
The only evidence offered on behalf of the plaintiff was the testimony of the plaintiff himself, given by deposition. He-testified that he was employed by the defendant company as its general manager to operate its mine and mill in Flathead county; that the contract for his employment was made in 1898, and in a general way he told of his operations of the company’s property during July and August of that year; that in such operations he employed Moffett as mill foreman, Gilli.s as mine foreman, and Lepper as a laborer; that the operations at the end of July were unsatisfactory, and at the close of August the plaintiff and his foremen had satisfied themselves that the property could not be operated at a profit. The plaintiff made this report to the company, and filed with the company his resignation on September 14, 1898, as provided in his contract of employment. On September 15, 1898, he met with the board of directors of the company at Spokane, and it was-then determined that operations under his management should cease, and the services of Moffett and Gillis be dispensed with.
“Gold Flint Mining Co., to J. D. Farrell, Dr.
To amount paid T. J. Moffett in full to date.$274.52
To amount paid J. Gillis in full to date____182.52
$457.04
Dess amt. in bank per financial statement.. 31.84
$425.20”
“Spokane, Wash., Sept. 15th, 1898.
“The above is correct as per statement rendered by J. D. FarrelL “GOLD FLINT MINING GO.,
“L. E. DAIGLER, Secty.”
Upon the cross-examination of this witness there was introduced in evidence, over the objection of the plaintiff, the written contract of his employment as general manager of the defendant company. Among other things, that contract provides that the operating expenses, the transportation and treatment charges of ores, and the ordinary repairs should be paid from the gross proceeds of the mining operations, and the balance should be divided as follows: twenty per cent to the plaintiff, Farrell, and eighty per cent to the defendant company. The twenty per cent to be paid to the plaintiff was to be in full compensation for his services as manager of the property. ' The contract contains this further provision: “It is further understood and agreed by and between said parties, that said party of the second part [Farrell] shall at no time during the continuance of this agreement, incur any indebtedness in excess of the value of the result of the operations, which shall create any liability whatever against said party of the first part [the company].” Under the contract the plaintiff was given absolute authority to direct the operation of the business of the property and to handle the proceeds of the mining operations.
As to the second cause of action plaintiff testified that he had employed Lepper from July 16th to September 15th; that at that time there was a balance due to Lepper of $71.75; that on September 21st he advanced to Lepper $20; that the company afterward paid to Lepper the balance of the account; that he took an assignment of the claim for the $20 advanced by him. An effort was made to show the character of work performed by Lepper and tbe value of his services, but this evidence was excluded. Plaintiff then sought to show the ■written assignment of the Lepper claim to him, but upbn objection this evidence was also excluded. However, the plaintiff does testify that he became the owner of the claim on September 21st. There was, however, no identification or attempted identification of the signature of Lepper to the assignment, and at the close of the testimony the court, of its own motion, struck out all the testimony respecting this second cause of action.
The motion for a new trial was made upon a statement of the case, which specified as the errors relied upon (1) the insufficiency of the evidence to justify the verdict, and (2) errors of law occurring at the trial. The particular errors of law
Respondent contends that from the instructions it is apparent that the trial court misapprehended the character of the action, and considered it as one upon the contract, whereas the action is for money paid out for the use and benefit of the defendant company, and, as far as the evidence shows, paid out after the contract had ceased to have any binding force or effect, as it was after the plaintiff had presented his resignation to the defendant company. However this may be, the court was right in saying to the jury that the plaintiff could not recover beyond the amount realized from the sale of the concentrates, and could not recover in any event unless the promise to pay him was made by the defendant company, acting through its board of directors. The evidence on behalf of the plaintiff himself is conclusive as to the first proposition. He says that he turned the concentrates over to Mr. Daigler, and that he advanced the money to Moffett and Gillis with the understanding that he should be reimbursed therefor from the proceeds of the sale of the concentrates. It then became incumbent upon him to show that the concentrates were sold, and a sum sufficient to reimburse him received therefrom; and upon this there is no evidence whatever in the record. In the second place, he says this agreement was made with Mr. Daigler. It appears that Daigler was the secretary of the corporation, but not a member of the board of directors, and, so far as this record shows, was not the agent of the company, nor had any authority to act for the company, beyond the authority given
Under this view of the case, we think the court was in error in granting the plaintiff a new trial as to the first cause of action; for under this view the plaintiff cannot recover as against the defendant company in any event, and therefore the error in the first part of the instructions, if error, was harmless. There was no error in admitting in evidence the contract bétween plaintiff and the defendant company. It was properly a part of the cross-examination of the plaintiff.
As to the second cause of action: It appears that the Lepper claim was for services performed by Lepper as an employee of the defendant company, employed by and working under the directions of plaintiff, Farrell. At the time Farrell took the •assignment of this claim, in September, 1898, he did so knowing that under his contract of employment he had no authority whatever to bind the corporation for any amount beyond the proceeds of the mining operations. It was therefore incumbent upon him to show that when he took the assignment of this claim there were concentrates or other products of his mining operations on hand sufficient to pay this claim. As he made no effort to show this fact, we are of the opinion that the court properly withdrew all testimony concerning it from the •consideration of the jury. It may be said that at the meeting ■of September 15, 1898, the value of the concentrates on hand
Reversed and remanded.