27 S.D. 221 | S.D. | 1911
This action was brought by the plaintiff Frank S. Peck and other plaintiffs against the New England Homestake Company and Chris Godfrey, seeking to foreclose certain miners’ liens against the mining property described in the complaint. The cause was tried to the court without a jury. Findings and conclusions were filed in favor of the plaintiff Peck. A personal judgment was entered .thereon against-the defendant Chris Godfrey. The miner’s lien, claimed by Peck, was denied. And motion for a new trial having been denied, the defendant Godfrey appealed to this court from such judgment and order denying a new trial.
The findings of fact herein are quite voluminous, and no useful purpose would be served by quoting-the same in full. Certain of such findings have been excepted to. by the appellant; but the evidence would fully sustain the following facts, which are among those found by the trial court: Several separate mining claims were involved in this action; said claims being originally taken or owned by different parties, and the defendant Godfrey being a part owner of some of the claims and sole owner of others. All of these claims had been conveyed to Godfrey for the purpose of obtaining patents and selling such property. In connection with these transfers, the several former owners had each entered into an agreement with Godfrey, on or about February 19, 1906, wherein it was agreed, .among other things,. that Godfrey should immediately .proceed to obtain, patents for said mining claims, and, when surveyor’s receipts were issued therefor, that he should. either pay the former owners $125 per acre for their claims or reconvey .the property to the former owners; and
The court further found that Russell was at all times the agent and attorney of defendant Godfrey, and, further, that defendant company, in all that it did toward the improving of said premises and securing patent'thereon, was the agent of said Godfrey. To such findings the appellant excepted and strenuously urges that there was nothing in the record to sustain the same.
[1] Before considering these several contentions, we must first dispose of a question of practice raised by respondent. It appears that, upon the trial and after all the evidence was in, by leave of court granted, the plaintiff amended his complaint by adding thereto a so-called second cause of action, setting up a claim founded upon an implied contract; the defendant did not answer the same. Respondent now contends that such allegations as were contained in such amended complaint and had not been denied in the original answer must be taken as admitted. With this we cannot agree. This amendment was made after evidence was received, which evidence had been met by defendant. This being true, the allegations of such amended answer will be treated as denied. Any other rule would be inequitable. Respondent concedes in his brief that the cause was tried substantially -as if on a general denial.
[2] In so far as the court found an agency to- exist between Godfrey and the defendant company, such as would in any way redound to the benefit of the plaintiff, we think the court was in error. It is true that, under the federal law, the -patent had to be procured by and in the name of -the defendant Godfrey, he being the record owner of the claims, and that whatsoever was done by other parties that might assist, or be necessary for 'the procurement of such patent, was necessarily reported and shown, in the final proof, as being done by and on -behalf of said Godfrey; but it appears that, under the agreements existing, everything connected with procuring a patent was to be done by and at the expense of defendant company, and that plaintiff was employed by -that company to- make the survey for them, knowing that their interest was not that of owner but merely equitable. What was the situation and relation of the parties interested
[3] But respondent urges that, even if such company and Russell had no authority to bind Godfrey for the payment of Peck’s, claim, yet that Godfrey had ratified their acts in employing Peck by using the notes and plat and thus became bound. But, as before stated, Peck never understood he was being employed by the company or Russell as agents for Godfrey, and therefore there was no chance for the application of the doctrine of ratification. This case comes directly under the rule laid down in decision upon rehearing in Minder & Jorgenson Land Co. v Brutuen (lately decided by this court) 26 S. D. 38, 127 N. W. 546, wherein are cited page 127, Mechem on Agency, and Ferris v. Snow, 130 Mich. 254, 90 N. W. 850.
[4] Did Peck acquire any rights from the contracts between Godfrey and the other former owners of the mining claims? Ir not, such contracts were immaterial and improperly received in evidence. These contracts were entered into long before Peck performed his services, and, if he has acquired any rights thereunder, they were acquired as soon as the work was performed, and his right to sue did not depend upon the use of the survey notes by Godfrey, but he would have a right to sue whenever he tendered such notes to Godfrey. No question of agency can enter into this feature of the case, because, while these contracts were shown to Peck by Russell, and Russell advised him that he believed he would be paid if the patent issued, still, even if Russell were considered as the agent of Godfrey, there is no pretense that Russell in any manner attempted to mislead Peck as to the legal effect of the contracts. What was the legal effect of such contracts ?
So in case at bar Godfrey’s liability, if any, must exist independent of these contracts; there being no pretense that the other parties to such contracts were, independently of such contracts,
[5I Can respondent recover upon an implied contract? We think not. Respondent contends that section 1218, Rev. Civil Code, applies to the facts herein. Such section reads: “A voluntary acceptance of the benfit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known or ought to have been known to the person accepting.” Under this section respondent contends that, when Godfrey filed the application for patent attaching thereto Peck’s survey notes, and
The judgment and order denying a new trial are reversed.