Amazon Irrigating Co. v. Briesen ( 1895 )

The opinion of the court was delivered by

Johnson, P. J. :

The first assignment of error complained of by plaintiff in error is that the evidence was not sufficient to warrant the finding of a verdict and rendition of a judgment against the defendant below.

The petition of the plaintiff below alleges that he entered the employment of the defendant below as a civil engineer to perform the services of an engineer in the construction of a certain canal or ditch through Finney and other counties in the state of Kansas, at an agreed compensation per month ; that he remained ill tlie service of the irrigating company from February 3, 1888, until tlie 22d day of May, 1888, performing the services of an engineer; that there was due him for his services under his contract the sum of $321,-with interest. The answer of the defendant below denies all of the allegations of the petition arid the amended petition of the plaintiff below, except such as were thereinafter specifically admitted, and it admits that plaintiff did undertake to do certain surveying and engineering work for defendant, and promised and agreed that such work should include the making an furnishing of certain field-notes, drawings and plats ; that plaintiff made said field-notes, drawings and plats, but refused to deliver them to the defendant, and that plaintiff voluntarily quit the service of the defendant without just cause or reason therefor, and in violation of his agreement to remain in the service of the defendant until the surveying and engineering work in the construction of the canal or ditch should be completed, and demands damages by reason of the failure to turn over the field-notes, drawings and plats, and by reason of his quitting the employment of the defendant before the canal or ditch was completed, and also alleges that the defendant furnished certain surveying instruments to the plaintiff and that he carried them away with him when he quit work on the canal, and demands judgment against plaintiff for the value of these instruments.

Plaintiff below' for reply to the answer denies specifically all the new matters set up in the answer of the defendant below which are in conflict with his petition and amended petition. These were the issues upon -which the trial w'as had. There was but one single witness examined on the trial, and that was the plaintiff himself. He testified at great length as to making tire agreement to do the engineering work in the construction of the canal or ditch, which was partly constructed when he entered the service of the company, as to the compensation lie was to receive and the work done in pursuance of his agreement, the time he commenced, and the time he quit, and that there were no objections shown anywhere as to the manner of doing the work, or that it was not done in accordance with the contract. \Ye think the evidence proves the issues on the part of the plaintiff below fully, and was sufficient to sustain the verdict of the jury and justify the judgment of the court thereon. The evidence covered several of the matters admitted by the .pleadings, which were entirely unnecessary under the pleadings to be proven. There was no evidence anywhere tending to prove any of the affirmative matters set up in the answer of the defendant below.

The second assignment of error is in the admission in evidence of the conversations between the plaintiff below and U. ID. Pickering. It is alleged, in the amended petition of the plaintiff below, that the contract was made in behalf of himself, and by U. ID. Pickering on behalf of the defendant; that at the time of making the contract the said Pickering was vice-president of the irrigating company and superintendent of the building and construction of said canal or ditch, and was acting in that capacity at the time. Section 108, chapter 80, General Statutes of-1889, reads:

“In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denical of the same be verified by the affidavit of the party, his agent or attorney.”

The allegations of the authority of Pickering were not denied under oath, and- hence were admitted by the pleadings. It was not necessary to introduce evidence to prove the authority of Pickering before his statements could be given in evidence. It was also shown by the evidence that the only contract that Briesen had made when he entered the employment of the irrigating company was with Pickering as vice-president of said company ; and the defendant’s answer alleges a contract with Brieseñ, and asks damages for the breach of it.

It is also contended that the court erred in the admission in evidence of certain conversations between Briesen and Jones, for the reason that it was not shown that Jones was an agent or officer of the irrigating company, or had any authority to represent it, and his statements were incompetent, irrelevant, and immaterial. It is shown from the evidence that Jones was acting in conjunction with Pickering in the superintendency of the construction of the canal for the company ; that both Pickering and Jones were giving directions in and about the work ; that one Cook was a contractor doing the work of excavating and making fills in the construction of the canal, and Pickering and Jones were giving the engineers and others engaged in the work directions as to the location of the general route of the canal. And it also appears that Jones was the person who provided the funds to pay the expenses and to pay the employees ; that there was no time during the progress of the work that there was any objection to the instructions given by Jones; that he was on the work every week, and he was the one whose instructions were generally followed ; and he 'was permitted for about four months to appear as one of the officers and one of the superintendents of the work without any objection whatever, he being on the- work almost continually, and the directions given by him were entirely satisfactory to the company. We think the evidence sufficiently shows that Jones had authority to represent the company and to act in conjunction with Pickering in its supervision, and that his statements and directions in the premises while the work was in progress were such as to bind the corporation. There never has been any disapproval of the manner in which the work was done, but, on the contrary, the whole work of the plaintiff has been approved, and the corporation says, in its answer to the petition and amended petition, that the plaintiff below quit work voluntarily, to the damage of the company. But, if there has been no evidence tending to show that Jones had authority to represent the company, then there would have been no prejudicial error in the admission of his statements. In the evidence given containing his statements he stated nothing about the making of the contract, or the compensation to be paid for the same, or the length of time the plaintiff below had worked, nor anything about any material fact in the case, and the company was in no manner prejudiced by any of the statements testified to as having been made by Jones.

It is contended by plaintiff that the court erred in giving instruction No. 5, as follows :

“5. You are instructed that if you find from the evidence that the blank books, papers, maps, charts and profiles were furnished to the said plaintiff by the defendant company, and that he, the said plaintiff, by his labor, art, and skill, placed therein and thereon field-notes, tracings, profiles and maps which were and are valuable to said defendant, and that defendant had not paid him for such services, -that he is then entitled to a lien on said property until he has received his pay.”

The defendant below in substance averred that the work to be done by plaintiff included the execution of maps, field-notes and drawings, which plaintiff offered to turn over to the defendant below upon defendant paying plaintiff what defendant was owing him ; that the defendant below refused to do so, and, for that reason alone the drawings, field-notes and maps were not delivered to the defendant below; that he was then, and now is, and always had been, ready and willing to turn over the same to the defendant upon payment for his services; that the drawings, field-notes and maps did not belong to defendant until plaintiff should be paid for his services. The defendant below in its answer, among other matters, in substance avers that plaintiff did undertake to do -certain surveying and engineering work; that such work so required to be done by plaintiff included the making and furnishing to defendant certain field-notes, drawings and plats ; that the entire value of plaintiff’s work for defendant depended upon making, and furnishing to defendant the field-notes, plats and drawings. The reply of the plaintiff below, among other things, in substance avers that it was not true that plaintiff refused to deliver the field-notes, drawings and plats made by him to defendant, but that plaintiff offered to deliver the same to the defendant on payment for his services.

Section 1, chapter 58 of General Statutes of 1889, reads:

“Whenever any person shall entrust to any mechanic, artisan or tradesman materials to construct, alter or repair any article of value, or any article of value to be altered or repaired, such mechanic, artisan or tradesman shall have a lien on such article.”

It is contended by plaintiff in his brief that a civil engineer, employed by the month, is not entitled to any lien upon instruments produced by his labor; that the very fact that the employment, if any, was upon the salary to be paid indefinitely, or monthly, is-inconsistent with the claim of lien under ¶ 3663 of the General Statutes of 1889, relating to mechanics, artisans and tradesmen doing job- or piece-work and not to salaried employees.

We do not think that it makes any difference whether the engineer be employed by the month, the day, or whether he be only employed to make the field-notes, drawings and plats. He is entitled to his lien until he has been paid for the making of the same ; and, where he has not delivered over the possession to the adverse party, is entitled to retain possession of the field-notes, maps and drawings until he has received his compensation for making the same.

It is insisted that the court erred in allowing the pleadings to be taken to the jury-room. The court in instructing the jury gave them very fully and completely the issues stated in the pleadings and what was claimed by each, stating to them that the plaintiff alleged that he entered into a contract with The Amazon Irrigating Company, through its authorized agent, to work for it as a civil engineer at $100 per month, the amount due him under his contract for work and labor performed over and above all set-offs or counterclaims — the sum of $321.66, with 7 per cent, from May 22, 1888 ; that he also claimed a lien on certain books and papers in his possession containing maps, profiles and field-notes made by him while acting as such civil engineer ; that said books, maps and profiles had been furnished to him in blank by said company for the purpose for which they were used; that it was claimed by the company that the work done by plaintiff was of little value to it, except by and through the maps, charts, profiles and field-notes, and that unless the company can have them it does not owe the plaintiff anything. The defendant below could not have been prejudiced by allowing the pleadings to go to the jury-room for references for dates after having the issues fully stated by the court.

In the case of Myer v. Moon, 45 Kas. 580, Mr. Justice Johnston, delivering the opinion of the court, says :

“In charging the jury, the court, instead of reciting at length the contract alleged to have been violated, and the misrepresentation alleged to have been made, referred the jury to the petition, and indicated those portions of the petition where the contract and misrepresentations might be found by pencil-marks, and permitted the jury to take the petition to the jury-room with them. The practice of referring the jury to the pleadings in order to determine in whole or in part the issues of the case is not to be commended. It is the province of the court to determine the issues and state them to the jury, and not leave them to ascertain the effect of the pleadings or the issues which they present. In this case, however, the issues were stated by the court, and the jury were only referred to the petition to ascertain the terms of the contract, which were not disputed, and the misrepresentations which it was alleged had been made by Myer. The construction of the pleadings or the determination of what the issues were were not left to the jury, and no prejudice could have resulted from the action of the court.”

There being no error in the record, the judgment of the district court is affirmed.

All the Judges concurring.