145 P. 929 | Nev. | 1914
Lead Opinion
This action was brought to recover $1,814.39 for goods, wares, and merchandise furnished by plaintiff, and for $100 alleged to have been advanced and loaned by plaintiff, and for $1,544.29 for goods sold and delivered by the Hodges-Cook Mercantile Company on a claim assigned to the plaintiff. Judgment by default was entered against both defendants. Thereafter the Cherry Creek Irrigation Company, the only appellant, moved to set aside the default and judgment entered against that company, asserting that it had a meritorious and complete defense to their action. This motion was accompanied by affidavits, including one by the defendant G. G. Davis, stating that he- was familiar with the causes of action set forth in complaint; that all of the goods and merchandise were purchased by him from James A. Nesbitt and the Hodges-Cook Mercantile Company, and that they well knew that he was personally liable for the indebtedness, and that the Cherry Creek Irrigation Company was not responsible for the same; that the $100 loaned by James A. Nesbitt was loaned to Davis personally. The court granted the motion to set aside the judgment, and that company filed its separate answer, denying the allegations of the complaint and the liability of the company, and the ease went to trial on its merits.
There was no dispute over the goods furnished or the amounts of the claims sued upon. The company contended that Davis alone was liable. The essential facts shown by the evidence and the findings of the court are undisputed. Davis investigated and undertook an extensive irrigation project for storing and conserving the waters of Cherry, Cottonwood, and Pine Creeks, mainly in Nye County, by means of a reservoir at the junction of these creeks. The water so conserved was to be used in Lincoln County. Davis secured in his own name from the state engineer a permit to appropriate the waters of the three creeks, and also secured in his own name a reservoir right of way from the United States. It was a part of his original plan to organize a corporation for his irrigation
At the "organization meeting of the incorporators and stockholders” of the Cherry Creek Irrigation Company on December 16,1908, G. G. Davis was elected secretary and treasurer. At that meeting the directors adopted a resolution authorizing the issuance of 130,000. shares to Davis, and the issuance of not to exceed 12,000 shares of stock for distribution- to the men for their work in pursuance of their understanding with Davis. The stock was issued accordingly in April, 1909. Thereupon Davis executed and delivered a deed to the company, dated April 2,1909, conveying to the company the reservoir, right of way, water rights, and improvements, with the appurtenances, privileges, and franchises incident thereto, and all the interests of Davis in the property, including the reservoir site, dam, headg'ates, culverts, ditches, and spillways. The deed was recorded in the office of the county recorder in Lincoln County on the 3d day of April, 1909. Davis was president and manager of the affairs of the company at all times after the directors’ meeting, and thereafter had full charge of all that was done at the project.
The court found that in selling goods to Davis, the plaintiff and his assignor, while they necessarily gave
The judgment was rendered in favor 'of the plaintiff for the amount claimed and for the supplies furnished as alleged in the second and third causes of action of the complaint. The $100 alleged to have! been loaned in the second cause of action was found to be for Davis personally, and is not included in the judgment.
" In the present case both the principal and the agent were joined as defendants. No motion was made by either of the defendants at any time that the plaintiff be required to elect which of the defendants he would look to. Even after the evidence was in, no such motion was made. Certainly the plaintiff did not elect to hold either the principal or agent by commencing suit against both, and the judgment which now stands upon the record against the agent was entered simultaneously with the judgment that was entered against the defendant company; both judgments being entered by the clerk of the court by default. The defendant company succeeded in having the default against it set aside, thus leaving the default judgment against the agent in full force and effect. In view of all the circumstances of this case, the court does not believe that it would be within the spirit of the rule to hold that the plaintiff had elected to hold only the agent.”
The judgment of the district court is affirmed.
Concurrence Opinion
I concur.