42 P. 585 | Idaho | 1895
On the eleventh day of November, 1891, the appellant corporation was the owner of certain mining property situated in Shoshone count}’-, Idaho, and on that day made and entered into the following contract, in writing, with one John H. Davey and Frank J. Davey (Exhibit “A”) :
“This agreement, made and entered into this eleventh day of November, 1891, by and between the Argentine Mining Company, a corporation, duly organized and existing under the laws of the state of Oregon, party of the first part, and John H. Davey and Frank J. Davey, of Wardner, Idaho, parties of the second part, witnesseth: That the party of the first part, in consideration of the sum of one dollar to it in hand paid, the receipt whereof is hereby acknowledged, does hereby covenant and agree that the parties of tbe second part may enter into and upon that certain mining claim known as and called the ‘Argentine Lode/ situated on Bonanza gulch, a tributary of the south fork of the Coeur d’Alene river, in Evolution mining district, county •of Shoshone, and state of Idaho, and to mine and extract therefrom, and ship and sell, the ores therein contained, for and during the term of eight months from and after the date of this agreement, which date shall be deemed the time when said parties of the second part shall take possession thereof. And the parties of the first part do further agree that if the said parties ■of the second part shall, within four months of the time of taking possession of said mine, pay and deposit in the Exchange National Bank of Spokane, state of Washington, to the credit of the party of the first part,’ the sum of thirteen thousand dollars ($13,000), and shall also, within eight months of the time of taking possession of said mine, pay and deposit in said bank, to
“THE ABGENTINE MINING COMPANY,
“By A. J. KNOTT, Pres. [Seal] “JOHN H. DAYEY. [Seal]
“FBANK J. DAYEY. [Seal]
“Attest: W. S. STEYENS, [Seal]
“Secretary.”
Under this contract or agreement, said Daveys entered into possession of said mining property in November, 1891, and continued in possession thereof, mining, working and extracting •ore therefrom, and disposing of the same, until the latter part of May, 1892, having taken therefrom during that period some •$60,000 worth of ore. In the latter part of May, 1892, said Daveys having entirely failed to keep their said contract, and not having made any, or any part, of the stipulated payments, said Daveys surrendered to appellant the possession of said mining property and premises. During and while the said Daveys were so in possession of and working said mine, and
Section 5125 of the Eevised Statutes of Idaho is as follows r “Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon road, aqueduct, to create hydraulic power, or any other structure, or who performs labor in any mining claim, has a lien upon the same for the work or labor done or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent, but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable to pay.” It is claimed by appellant that, none of the liens sought to be enforced in this action are valid or within the provisions of said section, in that none of the work or labor, nor any of the materials furnished, were so done or furnished for or at the request of the owner of said mine or its agent.
Let us examine these claims or liens in the order in which they are presented in the complaint. The notice of lien filed by the first-named plaintiff, the Parke & Lacy Machinery Company (appearing herein by Thomas Steel, receiver), contains the following words: “That the material so furnished the said mine was under a contract with the same company, made by John H. Davey and Frank Davey, the managers of the said^ Argentine Mining Company,” etc. In support of this statement in their notice of lien, respondents rely upon the said contract or agreement of purchase above set forth, between the said Daveys and appellant, claiming that, by the terms of said contract, the Daveys became and were the agents of appellant. We cannot agree with this contention. While it is true that no question of a lien arose in the case of Settle v. Winters, 2
The supreme court of Montana held in Block v. Murray, 12 Mont. 545, 31 Pac. 550, that a lien would not obtain in favor of persons furnishing materials or performing labor for one in. possession under such a contract. It can hardly be contended, in the face of the record in this case, that any of the claimants were unadvised as to whom they were giving credit, or to whom they were to look for payment. It does not appear, either from the testimony of John H. Davey, the senior partner in the firm of John H. Davey & Son, or from that of Mr. Hendrie, the manager of the Parke & Lacy Machinery Company, of whom the materials alleged to have been furnished were purchased, that there was any question as to whom the credit was given therefor. Davey testifies that he told Ilendrie at the time of making the purchase: “We have all that property [referring to the mining property of the Argentine Mining Company], bought out that company, and we own all that property on a time purchase.” The bill was rendered to John H. Davey & Son, was charged on the books of the Parke & Lacy Company to John H. Davey & Son, and subsequently a lien was filed by the Parke & Lacy Company against John H. Davey & Son .for this identical claim. It is in evidence in the record that, after the machinery and other materials were furnished by the Parke & Lacy Company, they sent to Daveys a lease, by the terms of which the title to the property was to remain in said Parke & Lacy Company until paid for. Can it be seriously contended, under such a state of facts, that the Parke & Lacy Com
Despondent cites the case of Eaman v. Bashford (Ariz.), 37 Pac. 24, an Arizona ease ; but on examination of that case will show that the lien law of that territory contains the following provision, not to be found in the statute of Idaho, to wit: “That the word ‘agent’ shall be construed to include all contractors, subcontractors, builders or persons, having charge or control of ■a mine,” etc. This case can scarcely be recognized as supporting the contention of respondents in the case under consideration. It seems to us there is a very marked difference between the contract in the Arizona case and this case. By the terms •of the contract in that case, the vendor was to have control of the product of the mine. The bullion was to he shipped in his ñamo, and returns made to him; and he was required to apply such proceeds to the payment of costs of the work, in advance of all other claims. He was thus fully protected against the encumbering of his property by the vendee. Counsel contend that, “whatever may be said of the testimony of J. H. Davey, it is perfectly clear that he assumed to act as the manager of the Argentine Mining Company.” But we must not overlook the fact that Mr. J. H. Davey, in his testimony, reiterates the statement that the firm of J. H. Davey & Son were the Argentine Mining Company; that they had bought out that company, and ■elected to continue operations in the name of the old company. At folio 471 of the transcript, he says: “I can tell you, as before, we were the company ourselves. I was the manager. We •considered that we were the owners of the company.” It is apparent from the record that J. H. Davey & Son were, during the whole period covered by the incurring of all the indebtedness included in these liens, not only representing themselves as the ■“Argentine Mining Company,” the successors of the defendant corporation, but that they were so recognized and accepted by the creditors herein, and the defendant was not so known or recognized. Whatever the purpose of the Daveys may have been in making such representations, one thing is not only apparent, but conclusive, from the record, and that is that their representations were taken and accepted by the plaintiffs, as the basis of their credits; and, while we are in accord with the rule that
We do not think the record anywhere shows any authority on the part of Knott, the president, or Iletzel, the attorney of the company, to bind the Argentine company to the payment of any claims against the company. The only allegation of ■ownership which appears in any of the notices of lien in the record is the statement that the work and labor for which the lien was -filed “was performed upon the lode mining claim, the ■property of the Argentine Mining Company,” or that the materials furnished “were used upon the Argentine lode mining ■claim, the property of the Argentine Mining Company.” Under the decision of this court in the case of White v. Mullens, 3 Idaho, 434, 31 Pac. 801, we do not think the notices of lien in this case sufficient. A statement in the notice of lien that the mines upon which labor was performed or materials were furnished “was the property of the defendant” is not such an allegation of ownership as is required by statute.
It seems to us, from a careful and thorough examination of the evidence in This case, that, at the time credit was given by ■each and all of the lienholders, it was so given to John H. Davey ■& Son, and not to the defendant corporation. The judgment of the district court is reversed, with costs.
