77 P. 218 | Idaho | 1904
This cause was tried in the district court of Idaho county; judgment was in favor of the plaintiff, from which and an order overruling a motion for a new trial the appeal was taken. A demurrer was sustained- to the first and fourth causes of action and overruled as to the second and third set out in the complaint; thereafter a motion was submitted to the court to strike out of the complaint all of the
This motion was overruled. The second and third causes of action set out in the complaint are as follows: “Plaintiff for •a second cause of action against the said defendants alleges: That on the thirteenth day of May, 1902, he entered into a second agreement with the said defendant, Wilbur E. Moore, as the agent of the said defendants, and on their behalf, by which agreement plaintiff agreed to transport and place said mill machinery upon the site where the same was to be erected and constructed, to wit, upon the said Crystal Butte mine, for which said work and labor the plaintiff was to be paid, under said agreement, what the same should be reasonably worth per day, in the event the plaintiff should succeed in so moving said mill machinery; plaintiff avers that he has fully kept and performed the said agreement in all things to be by him kept and. performed, but the said defendants, nor either of them, has paid anything on said agreement except as hereinafter mentioned; that under said last agreement the said plaintiff worked in moving said machinery to said Crystal Butte mine for the period of seventy-four and three-fourths days; that the same was and is reasonably worth the sum of $10 per day, which is due and owing plaintiff from said defendants under said agreement. To avoid repetition plaintiff hereby incorporates paragraphs 5, 6, -7, 8, 9 of this complaint as parts of this second cause of action and for that purpose refers to the same.”
The fifth allegation is “That the lands upon which said 'quartz-mill and tramway was so erected and upon which plaintiff worked and labored as aforesaid are described as follows, to wit: The Crystal Butte lode mining claim, and the Wise Boy lode mining claim, situate in Bobbins mining district, Idaho •county, Idaho, the same being prominent and well-known mining claims in said district, and being duly recorded in the records of quartz claims in said county and state. And plaintiff avers that the whole of said mining claims are required for the ■convenient use and occupation of said quartz-mill building.”
The sixth allegation is “That at the dates of the said above
The seventh relates to the filing of lien which is termed exhibit “A” of the complaint.
The eighth shows the amount paid for verifying and recording lien.
The ninth alleges that $250 is a reasonable attorney’s fee,, etc.
The answer denies all the allegations of the complaint including the sufficiency of the lien set out in exhibit “A” of' plaintiff’s complaint. Avers that plaintiff represented himself as a skilled and competent millwright as an inducement to his, employment to perform the services mentioned in his third cause of action; also that he was a skilled and competent mill builder and operator and a competent sawyer; that plaintiff' undertook and agreed to perform all the services in a skillful and workmanlike manner, and that said representations and agreement on plaintiff’s part were the inducement and consideration of said contract of employment upon which said plaintiff’s cause of action is based. That by reason of the unskillful, careless and unworkmanlike manner of construction a certain retaining wall, being an essential part of the foundation of said quartz-mill, fell during the progress of said construction, and that by reason of extra expense and delay the defendants were damaged in the sum of $350; that plaintiff in his unskillful, careless and unworkmanlike manner in operating the sawmill caused the destruction of a certain saw of the value of $100, and they were thus damaged in the sum of $100, making a total damage of $450, which they ask may be offset against any sum that may be found for the plaintiff; that defendants; did not at any time agree to pay plaintiff for his services what the same should be reasonably worth per day, or any sum greater than $5 per day.
TJpon the issues thus framed this cause was tried without a jury and on the twentieth day of May, 1903, the court filed its.
The second finding is “That said work and labor was and is reasonably worth the sum of $7.50 per day; the same being in all things fully performed by the plaintiff according to the terms of the agreement set forth in the complaint herein — for which the plaintiff has been paid; that nothing is due and owing thereon from defendants to plaintiff; that the sum of $625.25 has been paid by defendant to plaintiff which overpays the above amount in the sum of $64.37.”
The third finding is “That for the period of one hundred and three days, commencing on the first day of August, 1902, the said plaintiff, under a contract made with Wilbur E. Moore, as the agent of said defendants, the plaintiff erected said quartz-mill machinery into a ten-stamp quartz-mill, complete in all its parts, on the said Crystal Butte mining claim, mentioned in finding No. 1 of these findings; and did, during said period of one hundred and three days, under said contract, construct and build a tramway, about one thousand feet in length, from said mill, and connected therewith, and running therefrom to what is known as the lower tunnel of the Wise Boy mining claim; that said tramway is used in conveying ore or quartz rock from said Wise Boy mining claim to said mill. That under said contract so made for building said quartz-mill and tramway, the defendants agreed to pay the plaintiff, by and through their said agent, Wilbur E. Moore, what the same should he reasonably worth per day; that the same is reasonably worth the sum of $7.50 per day for the said period of one hundred and three days, as set forth in the complaint herein.”
The fifth finds “That the ambunt of $703.13 and interest thereon at seven per cent per annum from the first day of January, 1903, is now due and unpaid according to the terms of said contract, as set forth in said finding No. 3, and complaint herein.”
The sixth is “That the lands and premises upon which the said quartz-mill and tramway were constructed and erected, to-wit, the Crystal' Butte lode mining claim, and said Wise Boy lode mining claim, set forth in the complaint herein, and situated in Robbins mining district, Idaho county, Idaho, were and are owned and possessed by the said defendants, they being the owners and reputed owners thereof, except defendant Wilbur E. .Moore, who has no interest as owner in said Crystal Butte mining claim.”
The seventh is “That all that part of the Crystal Butte mining claim upon which said quartz-mill and appurtenances and tramway are built, together with so much of the grounds as the Wise Boy mining claim, in and upon which said lower tunnel is run and connected with the said mill by said tramway, are requisite for the convenient use and occupation of said quartz-mill, building and tramway.”
The eighth.is “That on the twentieth day of December, 1902, the plaintiff, to perfect a lien for the moneys so due him from defendants, set forth in the complaint, filed for record in the recorder’s office of Idaho county, Idaho, his notice of lien, and the same was duly recorded in said office.”
The ninth, “That plaintiff paid out as costs for filing and recording said lien the sum of $2.80 and that $110 is a reasonable attorney’s fee.”
The tenth is that all the above sums, together with interest and accruing costs, are each and all a valid lien upon the said quartz-mill building and tramway, together with so much of the land and premises of the said Crystal Butte and Wise Boy mining claims as is requisite and necessary to the convenient use and occupation of said mill building and tramway, and upon
The eleventh finds “That each and all of the allegations and .•averments in the complaint herein, except as modified and -qualified by these findings, are true.”
The twelfth finds “That the said defendants are not entitled to recover of the plaintiff any of their said alleged damages mentioned in their answer in this action.”
The thirteenth is “That each and all of the terms and conditions of said lien have been broken by the said defendants.”
As conclusions of law the court finds that plaintiff is entitled to judgment for the sum set out in the findings and that plaintiff is entitled to have his lien enforced.
The judgment follows the findings of fact and conclusions of law.
The first assignment of error is that the court erred in overruling defendant’s demand for a jury trial. We obtain the following facts from the record: “Be it remembered that on this seventh day of March, 1903, in open court, the plaintiff demanded that this cause be heard by the jury and the court overruled the demand and held the cause to be one in equity and triable by the court; and at this time the jury was permanently discharged for the term. And now on the seventeenth day of March, 1903, the cause was called for trial before the court without a jury and the defendant demanded that the cause be tried by a jury, claiming the lien under the facts to be an invalid lien and that the matters to be tried were therefore issues of law. And be it further remembered that before entering upon the trial of said cause the following objection was made:
“Come now the said defendants severally and object to the trial of this cause before the court without a jury, for the reason that the complaint does not state facts showing any cause -of action in equity, or entitling the plaintiff to any equitable relief, particularly in that there are no facts shown creating any lien upon the property, and that the complaint at best simply states an account for work and labor against defendants, or a portion of the defendants.”
It is urged that attorneys’ fees cannot be allowed in cases of this character. This court recently passed upon this question. (Thompson v. Wise Boy M. & M. Go., 9 Idaho, 363, 74 Pac. 958.)
The second assignment is based on the refusal of the court to grant the defendants a continuance until the evidence of W. E. Kelly could be secured. The affidavit of Wilbur E. Moore states: “W. E. Kelly is, and for a long time past and ever since the first day of February, 1903, has been, at the mill situated on the Crystal Butte quartz claim near Hump, Idaho; that his duties there are such as to require his constant attention, and he could not absent himself from his said business at said place without great loss to said business; that said W. E. Kelly had arranged to be in attendance as a witness at the trial of this cause, and to come out immediately upon notification that the case was set for trial; that this cause was set for trial on Saturday, the fourteenth day of March, 1903; that immediately after the court set the cause for trial on said day, W. Hr Cassady, one of the attorneys for the defendants, wrote said Kelly, notifying him that the case was so set, and also notifying him to come out immediately as a witness; that in addition to said notice this affiant wrote the said Kelly to the same effect; that owing to the extraordinary storms and the impassable condition of the
Applications of this character are largely within the discretion of the trial court, and unless it is shown that there has been an abuse of discretion, the order will not be disturbed by this court. Now, what are the facts? The witness Kelly is a party to the suit; it is shown by the affidavit of Wilbur E. Moore that he was at the time ready to come out when notified. The affidavit did not inform the trial court of the nature or importance of his occupation or employment there. He says: “His, Kelly’s, duties, there are such as require his constant attention, and he could not absent himself from said business without great loss to said business.” This is merely the conclusion of the witness, no facts stated that would inform the court of the necessity of Kelly’s presence at the mill. Applications for a continuance based on the absence of a party to the suit do not appeal with the same force as an application for an absent witness who is a stranger to the litigation. All parties •to the suit are supposed to be in attendance ready for trial and especially if they are necessary witnesses. On the other hand, a stranger to the litigation may try to avoid the service of process or purposely absent himself from the jurisdiction of the court, and even under such conditions diligence must be shown to procure the attendance of the absent witness, and that such diligence has failed to procure the attendance of the witness through no fault of the party making the application. We find no error in this ruling of the court.
The fourth assignment relates to the ruling of the court in refusing to sustain defendants’ motion to strike out certain portions of plaintiff’s second and third causes of action. This-assignment is not discussed in the brief. We find no error in this ruling of the court.
Learned counsel who represent the defendants in this casein their brief say: “The main contention between the parties-hereto is in relation to the contract of employment under which the services of the plaintiff were performed. It is the contention of the plaintiff that the services set out in his second and third causes of action were performed under implied contracts o'f employment, and that such services are reasonably worth-the sum of $10 per day. The position of the defendants is-that such services were performed under an express contract and that the plaintiff was to be paid therefor at the agreed rate of $6 per day.” Counsel for respondent accepts this tbeory and devotes nearly his entire brief -in the discussion of the evidence bearing on this question, and ably and earnestly insists that the findings and conclusions of the court are amply supported by the evidence. The evidence is too voluminous to quote very extensively from it, and the trial court having heard it all as it came from the witnesses and having passed upon it, under the long-established rule of this court, we should hesitate before disturbing his findings. It is only where it is plainly shown that there is no substantial conflict in the evidence on the material issues, or the trial court has ignored the evidence entirely and rendered judgment without support from the evidence that this court will interfere and order a new trial. An examination of the evidence in this case discloses that there is direct conflict as to the employment of plaintiff, plaintiff insisting that his contract was that he should be paid what his services were reasonably worth, and defendants insisting that it was under the contract price of $5 per day; A. W. Moore and Wilbur E. Moore so testifying.
The eighth assignment is based upon the ruling of the court in admitting any evidence showing or tending to show a lien upon the property of defendants under the complaint and notice of lien. We have already said the complaint was sufficient, and an examination of the Session Laws of 1899, page 148, section 6, convinces us that the lien complies with the requirements of the statute, hence no error in this ruling.
We now come to the most serious question presented by this record, and that is the sufficiency of the description of the property to be sold to satisfy the judgment, which is as follows: “It is adjudged and decreed that all and singular the ten-stamp quartz-mill building and tramway, situated upon the Crystal Butte and Wise Boy mining claims, lying and being in the Bobbins mining district, Idaho county, Idaho, upon which plaintiff filed his notice of lien, and mentioned in plaintiff’s complaint or so much of the land and premises upon which said mill building and tramway are situated as may be sufficient for the use and occupation of said mill building and tramway, to satisfy the amount due to the plaintiff from defendants on said judgment, interest and costs of this suit and ’expenses of sale, be sold at public auction by the sheriff of Idaho county, Idaho, in the manner prescribed by law, according to the course and practice of this court, etc.”
It will be observed that the court did not comply with this provision of the statute and fix the amount of land that should be sold for the necessary requirements for the convenient use and occupation thereof, but left it to the sheriff to determine this question. The intention of the legislature in this provision of the law is obvious. The court has the power to call witnesses to ascertain the amount of land necessary for the convenient use and occupation of the property to be sold under the terms and conditions of the lien and judgment, whilst the sheriff has no such power. It was error on the part of the trial court not to comply with this provision of the statute, and the case is remanded, with direction to the trial court to ascertain the amount of land required for the convenient use and occupation of the property ordered sold under the lien, and if necessary, call witnesses for such purpose; and after such fact is ascertained make a proper finding and modify the judgment accordingly.
Other errors are assigned, but in our view of the ease it is unnecessary to pass upon them. The judgment is affirmed with the above modification. Costs are awarded to respondent.