2 Dakota 220 | Supreme Court Of The Territory Of Dakota | 1880
This action was brought in the Lawrence County District Court, by the respondent Pearson, against one Alvin W. Whitney and the appellant Post, as co-partners, transacting business by the co-partnership name of the Keets Mining Company, to recover a balance alleged to be due him from said co-partnership for milling gold-bearing ores under, and damages ■ for the breach of, a milling contract, alleged in the complaint to have been entered into between the respondent of the one part, and the Keets Mining Company of the other part. The defendants answered separately. The appellant Post, by a general denial. The action was tried to a jury before the present Judge of said District Court, and a verdict and judgment was rendered and entered against both defendants, for $7,500 debt and damages. The defendant Post having unsuccessfully applied to the court for a new trial, has appealed to this court.
Upon the trial the respondent Pearson, without objection, read in evidence, for the purpose of establishing the existence of the contract alleged in his complaint, the following instrument in writing:
*243 “Memorandum of an agreement made and entered into this 16th day of July, 1877, at Central City, Dakota, by and between A. W. Whitney, superintendent of the Keets Mining Company, parties of the first part and J. B. Pearson party of the second part. Witnesseth:
“ I. That said parties of the first part in consideration of the promises hereinafter mentioned, and subject to the conditions hereinafter stated, hereby jointly and severally undertakes, promises and agrees to deliver at the mill of the said party of the second part, at Central City, on Deadwood gulch, in the county of Lawrence and Territory of Dakota, gold-bearing ore from the vein, lode or deposit of mineral-bearing ore on the south side of Hidden Treasure Gulch, in the county and Territory aforesaid, and known as the “ Keets Mine,” for the purpose of being crushed and milled and the gold extracted therefrom.
“ Said ore is to be delivered at said mill in quantities sufficient from time to time by said parties of the first part, to constantly supply the working capacity of the twenty-stamp mill of the said party of the second part, now being run at Central City, and which capacity is about (30) thirty tons daily.
“ II. The said party of the second part in consideration of the delivery to him at his quartz mill at Central City, aforesaid, of gold-bearing ore from the “ Keets Mine,” do hereby undertake, promise and agree jointly and severally to run said mill constantly upon said ores while there shall be any at said quartz mill, and not to delay the crushing and milling thereof by running upon any other ores, for a' term ot (90) ninety days commencing on the 16th day of July, A. D. 1877, and closing on the 13th day of October, A. D. 1877. It is expressly understood that Ihe parties of the first part are to have the entire use of said twenty stamps as specified in the foregoing.
“ III. The said parties of the first part hereby undertakes, promises and agrees to pay the said party of the second part for crushing and milling said ore, the sum of nine ($9) dollars per ton for each and every ton crushed and milled, in the currency of the United States or gold dust, retort or bullion, at such rates as will make the sum equivalent to said currency, payment to be made alter each clean up.
“IV. It is further understood and agreed upon that said parties of the first part shall have access to said mill at any time during the contract for the purpose of examining and inspecting the working of said mill, and may be present in person or by agent, at any and all clean ups, and assist thereat at their own cost and expense.
“ V. It is further understood and agreed upon that no publicity shall be given of the yield of said ore by the said party of the second part, nor of the amount of ore so milled from said mine.
“ VI. It is turther understood and agreed upon, that if at any time the ore from said mine shall not pay the cost of mining and milling, or in in case of the mine failing to produce, then the said parlies of the first part after reasonable notice may terminate this contract. Such reasonable notice to be given at such time as will enable the party of the second part to get other ores to run his mill. That is (10) ten days notice.
“ Witness our hands and seals the day and year first above written.
“A. W. WHITNEY. [Seal.]
Slept. Keels Mining Co. ■
“JOHN B. PEARSON. [Seal.]
To all of this evidence, the defendants objected, as tending to explain, vary and contradict the terms of the written contract. The objection was overruled by the court, and the appellant Post excepted, and the evidence was received.
After adducing further evidence, showing a balance due him for milling under, and a breach of, the contract, by the defendants, and the damages, plaintiff rested.
At the close of plaintiff’s testimony, the defendant Post read in evidence, without objection, the record of an order made in the same action, by the former Judge of the District Court, — Me. Justice BenNEtt, — sustaining a demurrer by Post to the plaintiff’s original complaint, wherein the contract in-question was set out at length, as an exhibit; which demurrer was for a misjoinder of parties and for insufficiency, and in which order the plaintiff was given thirty days leave to serve an amended complaint. Of such leave, plaintiff availed himself, and his amended complaint is the one in the transcript here. Upon, producing said record, defendant Post moved the Court to order a non-suit of the plaintiff, as to said Post,' which motion was denied, and excepted to.
Thus two questions are supposed to be presented for determination by this court; and I state them in the order of importance given to them in appellant’s brief:
First — Was the order of the former Judge of the District Court, sustaining the demurrer of Post to the plaintiff’s original complaint, and giving plaintiff thirty days leave in which to serve an amended complaint, a bar to the further prosecution of the action against him.
Second — Was it error to admit evidence of who composed the Keets Mining Company, and were, therefore, liable under said written contract, and of the conduct of the business connected therewith ?
The seriousness and earnestness with which the able counsel for the appellant in their brief, press the first proposition, lead this court to give it more attention than it would ordinarily seem to demand. Counsel in their brief say: “ It is upon the fourth alleged error of the Court that appellant most strongly relies.’ The fourth error assigned, being: “ That the Court erred in refusing to instruct the jury, that the judgment on demurrer theretofore rendered in said action, was a bar to a recovery against the defendant Post, and that the jury should find for the said defendant.”
It will be observed, that there was no judgment entered upon 'the order. That the action of the Court was an order merely, and not a judgment. That such order sustained the demurrer, and gave plaintiff leave to amend his complaint, and that within the time allowed by the order of the Court, the plaintiff served and filed his amended complaint, and the action proceeded.
No doubt the sustaining of the demurrer was an expression of thé then presiding Judge’s views regarding the contract; and
From such an order no appeal lies. Harris Mfg. Company v. Walsh, decided in this Court, term, 18.. The effect of sustaining this proposition of counsel, would be to hold that all orders, sustaining demurrers to complaints, for insufficient statement of cause of action therein, are bars to the further prosecution of the action for the same cause of action, and parties would be compelled to abandon .their actions in such cases, or elect to stand upon the demurrer, and let judgment be entered thereon, to enable them to have a review by the Appellate Court. Such a rule of practice would be regarded as absurd, if it could be established under the law. But it cannot. If the plaintiff has, and can state, a cause of action, it is the duty of the Court, in the exercise of a just and sound discretion, upon sustaining a demurrer, to allow him to- amend his complaint, imposing conditions when proper, and then the plaintiff may elect, at his option, to let judgment be entered upon his demurrer, or to amend, and if he can so state the facts in his amended complaint as to reach a
It is useless to continue this discussion further. The order sustaining the demurrer to the original complaint, in no way operated as a bar to a recovery upon the trial; the pleadings then consisting of the amended complaint and the defendant’s answer thereto.
The cases cited by counsel in support of their proposition, and to the effect that a judgment entered upon an order sustaining a demurrer to a complaint, is equivalent in certain cases, to a judgment upon the merits, and it is a bar to another action for the same cause of action.
Those cases have little or no bearing upon this. The principle there involved cannot be applied to the question here. The propositions are in no wise analagous.
A more serious question arises upon the construction to be given to the instrument set out in the record. If it was the contract of the Keets Mining Company, then evidence of such company being a co-partnership, of who composed that company, of the conduct of the business under that contract, and in relation thereto, for the purpose, of charging the defendant Post with liability thereunder, was clearly admissible. If it was only the contract of the defendant Whitney, then any evidence of the character stated, was immaterial as against the appellant Post, and no recovery thereon could be had against him.
This contract was read in evidence without objection. It was proper to explain it, so far as it could be explained, by evidence of the circumstances under which it was made, and the matter to which it related. (Civil Code, Sec. 938.) The contract upon its face was between A. W. Whitney, superintendent of the Keets Mining Company, parlies of the first part, and J. B. Pearson, party of the second part.
The parties of the first part, agree to deliver the ore from the Keets Mine — the property of the Mining Company — to the plaintiff's mill.
The parties of the first part, are to have the entire use of twenty-five stamps of plaintiffs mill for ninety days.
The parties of the first part, are to have access to the plaintiff's mill, for certain purposes, either in person or by agent, and may assist at all clean ups at their own cost and expense.
The parties of the first part, may by notice terminate the contract, etc.
Finally it is signed by Whitney signing himself “ Supt. Keets Mining Company.”
What, is plainly inferable from this instrument, was the intention of Whitney. Can it be doubted that he intended to bind the Keets Mining Company ? If he did, then that company is bound by it. Any doubt which may linger around the question as to what is the proper rule of law to apply to transactions of this character, by reason of the apparently conflicting decisions of other States or Territories, is resolved by the provisions of our Civil Code, Sec. 1373, as follows: “Any instrument within the scope of his authority by which an agent intends to bind his principal does bind him if such intent is plainly inferable from the instrument itself.!' Whitney was a co-partner in the co-part
It follows that it was not error to admit the evidence objected to nor to refuse the instruction asked.
And no error appearing in the record the judgment of the District Court is
Affirmed.