66 P. 360 | Utah | 1901
It is, in substance, alleged in the complaint that on or about the first day of December, A. D. 1890, the said Victor Gold & Silver Mining Company, being then the owner, in the possession and entitled to the possession, of all of the said real estate and mining claims (described in the complaint), entered into a contract with this plaintiff, by which
At the trial, immediately before the introduction of the evidence, the'defendants made a motion to dismiss the case on the ground that the trial court had no jurisdiction, for the reason that no notice had been published in pursuance of the provision of section 8, chapter 41, Mechanic’s Lien Law 1894 (section 1391, Rev. Stat.). This motion was overruled. The plaintiff thereupon went upon the witness stand, and testified, in substance, that in the latter part of November, 1890, he applied to William Groesbeck, who was the president and general superintendent of the defendant mining company, for work as a common miner in the mines of the company; that in a few
The first objection urged by the appellant is that the trial court erred in overruling the motion to dismiss the case. It was not alleged in the motion, nor does it appear from
“At the time of filing the complaint and issuing the summons, the plaintiff shall cause a notice to be published at least once a week for three consecutive weeks in one newspaper of general circulation, published in the county, notifying all persons bolding or claiming liens on said premises, under the provisions of this chapter, to be and appear before said court on a day specified therein, and during a regular term thereof, and to exhibit then and there the proof of said liens. On the day appointed, all persons claiming liens against the premises shall appear before said court and exhibit the same, whereupon the court shall proceed to hear and determine the claims in a summary way, or may refer the same to a referee to ascertain and report thereon, and shall enter judgment according to the right of the parties, and all liens not so exhibited shall be deemed to be waived against the property.”
A summons was regularly issued and served on the defendants but the record fails to disclose the publication of the notice mentioned, and it is conceded that none was published. If there were other lien claimants, the defendant mining company should have in its answer pleaded that fact; but having failed to do so, or otherwise show or claim that there were any
“This brings us to a consideration of the last question presented by this appeal: Did the court err in hearing and deciding this case without proof that notice had been given to other lien claimants, as provided in section 15? If there had been any showing that there were other lien claimants, we think it would have been the duty of the court to have compelled the plaintiffs to give the notice required by law before proceeding to hear the case. The law contemplates that all the lien claimants shall be brought in, and their rights, as well as those of the plaintiff and defendant, shall be heard and determined in one action. Elliott v. Ivers, 6 Nev. 290. But in the present case there is no showing that there were any other liens, and we must presume there were none. If so, the defendant could not have been prejudiced, and is not entitled to a new trial.”
The case of Elliott v. Ivers, 6 Nev. 287, is also' in point. We have been unable to find any other decisions directly in point, but the cases of Sexton v. Weaver, 141 Mass. 278, 6 N. E. 367, and Branham v. Nye, 9 Colo. App. 19, 47 Pac. 402, have an indirect bearing. By the service of the summons on the defendants, and the appearance by answer of the defendant mining company, the court acquired jurisdiction over the subject-matter of the litigation between the plaintiff and de
The second .objection is as follows: “The court erred in admitting evidence as to conversations with Groesbeck, and agreement with him, made after the services had all been rendered, that the compensation should be at a given rate.” The specific ground of this objection is stated in the brief of appellant’s counsel, as follows: “It was incompetent for the reason that it called for the declaration of Groesbeck respecting a past transaction, under circumstances when he (Groes-beck) had no power or authority to bind the corporation. It was immaterial, for the reason that it did not tend to sustain the issue tendered by the complaint, for the reason that the complaint alleged a contract made in December, 1890.” In respect to the first objection, it appears from the record
In regard to the other objections, the time at which the alleged contract was made is not of the essence of the contract. This being so, the plaintiff was not required to prove the
The third assignment of error is that the court erred in
This brings us to the consideration of the question of the alleged fatal variance between the contract as proved and the
Under this contract the defendant fixed the amount of compensation at a sum less than that claimed by the plaintiff, and less than the sum which the judge of the trial court found from the evidence the services wore reasonably worth. The judgment rendered was not for the sum so found by the judge, but for the compensation fixed under the contract by the defendant. The judgment so rendered was affirmed on appeal, and in the opinion affirming the same the court said: “It was the duty of the defendant to determine and fix the amount of the compensation honestly and in good faith, and, if it did so fix it, the obligation of the contract was fulfilled, so far as that matter is concerned. It is not alleged in the pleadings nor found in the decision that the defendant acted fraudulently or in bad faith, and fraud or bad faith is not to be presumed. The mere fact that the defendant fixed the compensation at an amount considerably less than the learned judge of the trial-court found, upon the evidence before him, the services were reasonably worth, is not of itself sufficient to justify an inference of fraud or bad faith.”
In the case at bar it was the duty of the general superintendent to fix the compensation of plaintiff, and having done so with the concurrence of the plaintiff, in the absence of the
As a fourth assignment of error, it is urged that the plaintiff, under the objection of the defendant company, was permitted to testify as to the reasonable value of his services; but as he stated that they were worth what they were
The fifth assignment of error is that the finding in the third finding of fact, that the mining company and plaintiff entered into a contract on the fifth day of December, 1890, by which the plaintiff was to become foreman of the company’s property, at the' stipulated compensation of $3 per day for the-time employed by him, with a deduction of $1 per day for board; the following portion of the fourth finding, to-wit: “That plaintiff, pursuant to said agreement, entered into possession,” etc., “and remained in possession,” etc., “until August 14, 1894. . . . That between Hay 1, 1893, and August 14, 1894, he individually kept possession, etc., under said original contract as modified as to rate of compensation to $2 per day and plaintiff board himself;” and the following portion of the fifth finding: “That no agreement was ever made between the plaintiff and the defendant corporation as to any rate of compensation for the period from Hay 1, 1893, to August 14, 1894, but the reasonable value of the services was at the rate of $60 per month,” — are inconsistent with each other, and do not conform to the pleading and proof. The rate of the compensation per day in each of these findings is the same, viz., $2. They are inconsistent with each other in regard to
The sixth assignment is that “the court erred in rendering judgment upon the findings as made, for the reason that it was apparent that the claim of lien was not made in good faith.” This assignment is untenable, because the want of . good faith was not in issue by the pleadings, and it does
The seventh assignment is that the court erred in awarding
This disposes of all the questions presented in the brief and argument of counsel for appellant. The decree of the lower court is affirmed, with costs.