Nolan v. Lovelock, 1 Mont. 224

Nolan v. Lovelock

1 Mont. 224 | Mont. | 1870

Knowles, J.

This is an action to foreclose a lien upon certain mining ground owned by appellants, for work and *227labor done thereon. The respondent, in the court below, obtained judgment against the appellants for $554.90, and a decree for the sale of this mining ground — upon which a portion of the work had been performed — to satisfy $445.90 of this amount. The appellants, in the court below, moved for a new trial, which was denied. Prom this judgment they appealed to this court, assigning as error the points which will now be considered.

The evidence shows that the appellants owned certain mining ground in Confederate gulch as tenants in common; that they worked it together, and that the gold taken therefrom went first to pay the expenses of working it, and the residue, if any, was to be divided among them in proportion to the interest of each in the mining ground. This made them mining copartners. Duryea v. Burt et al., 28 Cal. 569.

One of the partners, Lovelock, employed respondent to work on the mining ground in mining. He performed work that amounted to $445.90, for which he was not paid. The question arises whether Lovelock had authority to bind his copartners in contracting a debt for working in their mine. One partner in a mining copartnership has authority, by implication of law, to bind his copartners in creating a debt for the purposes of working their mine, if it appears that such work was useful or necessary for that object. Yale on Mining Claims & Water Rights, 224, and cases there cited. There is no doubt but that the labor performed by respondent was useful in working their mine, and that appellants received the benefit of it. Perhaps, in some cases, one partner might limit his liability even for necessaries, by giving notice to the person performing such work, in due time, that he would not be liable therefor. Where, however, a firm is composed of more than two persons, if a majority agree upon any undertaking in working mining ground, it would be doubtful whether any one of the partners could limit his liability for necessaries, as a majority of the firm, in such cases, ought to control. Daugherty v. Creary, 30 Cal. 290.

*228In this case there were three copartners, one of whom hired respondent, and another of whom settled with him and gave him a memoranda, stating how much the firm was indebted to him. This would go to show that, at least, one had contracted with respondent, and the other had ratified it. The appellants all testified that neither one of the firm had authority to bind the others, and also considerable concerning the interest of each in the mining ground. It-might be that some of this evidence was introduced to show that the copartners had limited their liability, but I do not think it was sufficient to warrant the court in finding any such notice. I am, however, inclined to think that appellants introduced this evidence to show that appellants were tenants in common of the mine, and, hence, were mining copartners, under the impression that it devolved upon the respondent to show some express authority, from each copartner, to authorize any member of the firm to bind the rest. The rule, however, is different. ■ It devolves upon the firm to show that they had an express agreement with each other, that one should not contract for what was useful or necessary without the express consent of the others, and that the party contracting with any member of the firm had notice of this agreement. Without this the law gives authority to each member of a mining copartnership to bind the rest for what" is useful and necessary in their undertaking. No such agreement as this was proved in this case.

There is nothing in the point insisted upon by appellants’ counsel, that the complaint does not state facts sufficient to warrant the court in decreeing respondent a lien on the mining ground, because the complaint does not say that the respondent labored upon this mining ground under an express or an implied contract. The facts set forth in the complaint show that the respondent performed the work under an implied contract. This is sufficient. It is not necessary for a party to state the name of the contract he sues under. When he states the facts amounting to a contract the law names it.

*229It is claimed by appellants that, because respondent claimed a lien for a larger amount than he was entitled to, he lost his lien. A person seeking to foreclose such a lien appeals to the equity powers vested in a conrt. No court of equity ought, in the absence of an express and positive statute, to hold that a person claiming a lien for more than he was entitled lost his lien, unless it clearly appeared that there was some fraud connected therewith.

The respondent is, therefore, entitled to a judgment against the appellants for $445.90, and a lien for that sum on the mining ground upon which he performed the work.

The court below gave the respondent a further judgment for $93, for work done on a bed-rock flume. In the statement on the motion for a new trial, the contract under which this work was done is set out in full. It is not a joint contract. These appellants and other parties became bound, individually, each in a certain sum, and neither one, in any way, became bound for the other. There is no evidence that this copartnership ever became, in any way, bound for this debt. If any of the individual members of the firm owe this amount, or portions of it, the respondent must recover it of them individually. He cannot recover it in this action.

The judgment of the court is, therefore, modified. Respondent should have judgment for $445.90, and a decree for the sale of the mining ground specified in the notice of lien.

Judgment modified.