Salmon River Mining & Smelting Co. v. Dunn

3 P. 911 | Idaho | 1882

PRICKETT, J.

This action was commenced in the district ■court of the third judicial district, in and for Lemhi county, and afterward transferred to Custer county, in the same district, for trial. The complaint alleges that the plaintiff is a corporation organized and existing under the laws of the state of Nebraska for the purpose of mining, smelting, and refining and marketing tbe products thereof, and the sale of, and otherwise operating in, mining properties, and, as such, has be\sn, for more than four months last past, doing business in its corporate name. It is further alleged in the complaint that the appellant, Ballard S. Dunn, and one Carson, on the twenty-third day of July, 1880, entered into a contract, by the terms of which Carson was to build a bridge across Salmon river, and to receive therefor, from appellant, the sum of $3,100; that subsequently to the making of said contract the location of the bridge was changed and the length of the bridge was by such change necessarily increased; and that in consequence of such increased length it was agreed that $650 should be added to the original contract price; that Carson built the bridge and performed all the conditions of the contract on his part, and on the seventh day of October, 1880, assigned all his right, title, and interest in said contract to the plaintiff; that no part of the money due upon the contract has been paid by the defendant; that defendant has taken and holds possession of the bridge.

The only question before the court is whether the complaint contains facts sufficient to constitute a cause of action; for, notwithstanding the fact that the transcript contains a paper called a bill of exceptions, it is not such in any sense of the term. • It is merely an assignment of errors, without any record of bill of exceptions showing the proceedings or decisions of the court in respect to the matters assigned as errors. The general rule is that a corporation has and may exercise such powers as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted, and not as having any other. The plaintiff-in this case, as the complainant states, is a corporation organized for the purpose of mining, smelting, refining, and operating in mining properties. The purchasing of choses in action is entirely foreign to this business. In every contract there must be mutuality, and therefore parties capable of contracting. The demurrer to the complaint should have been sustained.

The judgment of the district court is reversed, and the cause remanded, with directions to allow the plaintiff to amend his complaint.