Sandberg v. Victor Gold & Silver Mining Co. , 24 Utah 1 ( 1901 )

BASEIN, J.

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

the said plaintiff was to become and be superintendent thereof, and was to take possession of all of the said property, and to run, work, and operate the same as manager and superintendent thereof, and to have charge and do development work thereon, and that he was to receive $200 per. month; that on or about the first day of September, A. D. 1893, the- said ágreement was modified, so that this plaintiff was to receive thereafter $60 per month, but in all other things said contract was to continue and be in force; that on or about the first day of December, 1891, in pursuance of said agreement, plaintiff entered upon said employment, and continued therein from said date up to the present time (which was October 22, 1894, the date of filing the complaint); that the amount due plaintiff for his said services, up to and including August 16, 1894, was $7,490, and that he has only been paid $673; that there is still due him $6,817.; that on the sixteenth day of August, 1894, he claimed a lien oh the said mining company’s property, and on that day filed in the office of the recorder in Juab county, in which said property is situated, a statement in writing containing a notice that he claimed and intended to hold a lien on said property for his said demand; that said statement was recorded in said office on the seventeenth day of August, 1894, and on the same day a copy of the same was served on the Victor Gold & Silver Mining Company. The prayer of the complaint was for the foreclosure of the lien and for general relief. The answer of the appellant, the Victor Gold & Silver Mining Company, denies the execution and modification of the contract alleged in the complaint, or that plaintiff entered into the possession of or worked upon the said property of this defendant on the first day of December, 1890, or at any other time prior to December 15, 1890, or that since the date aforesaid he has been or remained in the possession of said property, or has taken, charge thereof or has done any work or labor thereon to any extent, or in any manner after the thirty-first day of March, 1893; that the

work and labor performed by said plaintiff for this defendant began on or about the fifteenth day of December, 1890, and continued, with interruptions, from time to time, up to and including the thirty-first day of March, 1893, and no longer; that said labor was performed under an express contract and agreement, between said plaintiff and this defendant to this effect, namely, that the said plaintiff should perform work and labor as manager or foreman for this defendant at and upon the mining property aforesaid, and that the plaintiff should be paid therefor at the rate of $60 per month, and should receive in addition his board and lodging, to be supplied by this defendant, and, except for small sums for clothing and other small expenses, the plaintiff was not to be paid anything for his services, until by his labor, and the labor of such other miners as the company might employ, the mining property should be rendered productive, and that then, and not until then, was he to be paid only out of the net proceeds of the ore extracted from the mining property. The answer further alleges that at no period during the time the plaintiff continued in the service of the company were the proceeds of the mine sufficient to pay the expenses of working the same, and no net proceeds whatever were received by said company; that the plaintiff has been paid by the company for his services $1,990.05, and in addition thereto was furnished with board.

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

days thereafter he and Groesbeck went to the mining property of the company, and that he began to work; that in about a week thereafter William Groesbeck came back to the mine, and said to the plaintiff, “I want you to take charge of the mine, and I will make the wages all right with you;” to this plaintiff assented, and there was nothing said further about the wages at that time; that the plaintiff, as requested, took charge of the mine, and continued in charge thereof until the men employed under him all quit, in June, 1893, on account of not being paid; that during that period he worked continuously; had charge of eight men at one time, directed their operations, bought the provisions, signed the checks, and had complete charge of the workings; that William Groesbeck was the president and general manager, and directed the plaintiff, and gave him orders, which plaintiff gave to the men working under him; that plaintiff was never discharged by the mining company, and after the men quit continued to work in the mine; that he worked faithfully all the time from September, 1893, to August, 1894, fourteen or fifteen hours per day, and from December, 1890, up to September, 1893, worked hard all the time, putting in each month full month’s labor, and in addition to his other labor did the surveying and black-smithing at the mine; that on the day the lien was taken out, August 18, 1894, plaintiff went to Groesbeck’s house, in Salt Lake Oity, and after they had talked about taking out a lien, and about plaintiff’s wages, Groesbeck agreed to give plaintiff $6 per day from December, 1890, up to September, 1893, and because the plaintiff had no men under him from September 1, 1893, to August 18,1894, it was agreed that the plaintiff for that period should be paid only $60 per month; that they then went to Judge Henderson’s office, and after some further talk about the matter, Judge Henderson, an attorney at law, sat down, and, in the presence of Groesbeck and plaintiff, dictated the notice of the lien claimed by plaintiff, and after both

Groesbeck and tbe plaintiff bad read tbe same, and Groesbeck bad said that it was all right, tbe notice was sent to tbe county recorder, and by him recorded. Tbe notice of lien, after stating tbe amount of plaintiff’s claim, set out tbe contract between tbe plaintiff and tbe defendant mining company, as follows: “And I further give notice that I was employed to do tbe said work and labor aforesaid by tbe said Victor Gold and Silver Mining Company, which is tbe owner of said real estate; that tbe terms of said contract was that I should enter into possession of said property, and remain in possession of it, having tbe sole charge thereof, and be its manager and superintendent, and to receive'$200 per month until September 1, 1893, and from that time $60-per month; and that tbe amount above stated is tbe sum actually due, over and above all legal or equitable set-offs and credits.” It is stated in tbe bill of exceptions that plaintiff’s lien was prepared and this action brought by Messrs. Brown & Henderson, as plaintiff’s attorneys, who were' at tbe same time tbe attorneys for defendant mining company in all btigated matters except this action. It also appears from tbe bill of exceptions that it was admitted at the trial by defendant’s attorneys that William Groesbeck from December 1, 1890, to September 1, 1894, was the president and general manager of tbe company’s mining property, and bad authority to employ and discharge tbe workmen, and owned 57,388 shares out of 100,000 shares of tbe stock of the company. William Groesbeck testified that be agreed to pay tbe plaintiff $3 per day, and be to board himself. Tbe foregoing is, in substance, all of tbe testimony relating to tbe contract. Tbe trial court, in place of awarding tbe amount fixed by the general superintendent and tbe plaintiff on tbe sixteenth day of August, 1894, awarded plaintiff tbe sum of $1,644, with interest at the rate of eight per cent per annum from August 14, 1894, and decreed that tbe plaintiff held a lien on tbe said mining company’s property to secure tbe same; that said property be sold, and tbe proceeds thereof applied in

satisfaction of said Ben and the costs of the suit. None of the defendants except the mining company appealed.

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 1 the record that any other person than the plaintiff claimed or bad filed a lien on the mining property in' question. It is stated in the bill of exceptions that the defendant at no time attempted to show that any other notice or claim of lien bad ever been filed against said property, and that the recorder of Juab county testified that no other notice of claim on said property bad ever been filed. Section 8, chapter 41, Mechanic’s Lien Law 1894 (section 1391, Kev. Stat.), provides that:

“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 .others, we must presume that there were none. The record fails affirmatively to show that the company has been prejudiced by a failure to give the statutory notice. If it had been shown that there were other lien claimants than the plaintiff, the trial court, no doubt, would, upon request, have required the statutory notice to be published. Section 15 of the Nevada lien law (Comp. Laws Nev., p. 805) contains the same provision as section 8, chapter 41, Laws 1894 (section 1391, Rev. Stat. Utah), before quoted. In the case of Lonkey v. Wells, 16 Nev. 271, in which an identical question with the one under consideration was raised, in the opinion delivered by Hawley, J., it is said: .

“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 defendants and of tbe parties to the action, and therefore committed no error in overruling the defendant mining company’s motion to dismiss the action.

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 2 that "William Groesbeck, at the time of the transaction in question, was the president and general manager of said company. In that capacity he employed the plaintiff, and directed him while employed in the service of the company. In view of the facts disclosed, the general superintendent of the company was the proper party to whom the plaintiff should apply for the adjustment and payment of his wages. This he did, and the plaintiff’s statement that the adjustment, claimed by and testified to by him, was made, is uncontra-dicted in the record. We are of the opinion that the evidence in question was not objectionable on the ground of the want of authority of William Groesbeck.

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 3 exact day alleged, but could show that it was made at a different time; therefore the variance between the date alleged and the date proved was immaterial.

The third assignment of error is that the court erred in admitting plaintiff’s notice of lien, on the ground that the contract declared upon and stated in the notice of lien is an express one, and that the testimony shows an implied contract 4 —“a promise to pay on a quantum meruitthat there was a fatal variance between the facts as proven and admitted and the allegations of the complaint, and the contract and facts set forth in the notice of lien. The plaintiff testified that the agreement in regard to wages was that they should be made all right, or, which is the same thing, that they should be what the plaintiff’s services were reasonably worth. Millar v. Cuddy, 43 Mich. 273, 5 N. W. 316; 38 Am. Rep. 181. In other words they were, in expressed terms, to be what the law would have implied if the parties had been silent on the subject of wages; for it is well settled that when one requests another to perform services for him, and no provision is made for compensation, the law implies a promise to pay what they are reasonably worth. But, as stated by Lord Kenyon, C. J., in Cutter v. Powell, 6 Term R. 324: “Where parties have come to an express contract none can be implied, has prevailed so long as to be reduced to an axiom in law.” Conditions, however, not expressed, may be implied from the expressed terms of an express contract; as, in a contract for the sale of goods which is silent as to the time of delivery, a reasonable time will be implied. In this and similar instances what is implied is as much a part of the express contract as the terms which are expressed. 1 Beach, Cont., sec. 710, and eases cited. “When an express promise is the same as the law implies, an action lies .on either of them.” 1 Beach, Cont., sec. 646. The fact that the express promise in respect to wages was the same as the law would have implied had no express promise been made did not make the contract an implied one or change its character as an entire expressed contract.

This brings us to the consideration of the question of the alleged fatal variance between the contract as proved and the contract as set forth in the complaint and notice of lien. The agreement of the mining company, made by its general superintendent, was that the wages should be “made all right.” It is .evident, not only from that stipulation, but from the fact that the company paid the plaintiff at least $673 fox his services, that they were not to be gratuitously rendered, but that the plaintiff was to be paid for his services what they were reasonably worth. The amount of their worth was certain because it could be made certain by proof of the reasonable value of the services. The general superintendent of the company and the plaintiff, having, in the adjustment before mentioned, made the amount certain, other evidence respecting the same, in the absence of an allegation and proof of bad faith, was unnecessary. The language of the contract in regard to wages evidently contemplated either an amicable adjustment of the same, or that the general superintendent should fix the same at what was right; that is, what they were reasonably worth. The value of the services having been amicably fixed in the adjustment mentioned, and the notice of lien, with the consent and approval of the general superintendent of the company, having been made, the only variance between the contract set forth in the complaint and notice of lien and the proof and admitted facts is the difference between $2,000 and the less amount shown, by the evidence. The maxim, “Id cerium, est quod cerium reddi potest ” is logical, as well as a rule of law, and is applicable in construing contracts of the character of the one in question. In the opinion delivered by Shaes'wood, J., in the case of Thompson v. Stevens, 71 Pa. 161, the maxim was applied to a contract similar to the one at bar. In that ease the plaintiff recovered a judgment, which was affirmed, for $10,000, on an express contract, which, as stated in the opinion,- provided “that, if she (the plaintiff) would stay with him (the testator) as long as he lived, he would provide and give her full plenty after he was gone, so that she need not work.” It appears that the testator' in bis will bequeathed to plaintiff $2,000. Notwithstanding this bequest, a number of witnesses were permitted to testify to the character and value of the services. Justice' Shabs-wood, after stating the maxim before quoted herein, said: “We see no error in the manner in which the plaintiff’s right to recover under the alleged express contract was submitted to the jury.” In Wildman v. Glossop, l Barn. & Ald. 12, Lord Ellenborough, C. J., said: “The word ‘cerium* must, in a variety of cases, refer to an indefinite quantity at the time the contract is made, and must mean a- quantity which is to be ascertained according to the maxim, ‘Id cerium est quod certum reddi potest/” And in Palmer v. Moxon, 2 Maule & S. 50 (Broom, Leg. Max. 625, 626, note 1), the same eminent judge said: “And where the law requires a particular thing to be done, but does not limit any period within which it must be done, the act required must be done within a reasonable time; and a reasonable time is capable of being ascertained by evidence, and, when ascertained, is as fixed and certain as if specified by act of parliament.” In the case at bar, as the value of plaintiff’s services was capable of being ascertained 5 by evidence, the rate of wages which the mining company was obligated by the contract to pay was certain, and certainly, after the amicable adjustment of the parties, it was proper to allege, in declaring upon the contract, that by its terms the defendant company agreed to pay the wages fixed in the adjustment by the general superintendent on behalf of the company. ‘ In place of the rate of wages so fixed, the complaint and notice of lien stated a greater rate, and the defendant company, in its answer, alleged a less rate was to be paid, but only upon certain alleged conditions. The abstract herein contains no evidence in support of these allegations of the answer, nor was it claimed by counsel for the appellant, either in their brief or argument, that any such eyidence was introduced. The variance between the rate of wages proved by plaintiff’s evidence and that alleged in 6 the complaint and stated in the notice of lien was not fatal, and, as the judgment rendered was for a sum much less than that alleged in the complaint and established by the adjustment, the- appellant certainly has no just ground of complaint. In the case of Butler v. Mill Co., 28 Minn. 205, 9 N. W. 697, 41 Am. Rep. 277, the agreement under which the plaintiff recovered was “that plaintiff was to enter the service of the defendant in superintending the mason work of a mill, about to be erected by it, and the amount of the plaintiff’s compensation therefor was to be left entirely to the defendant to determine and fix, after the services were, performed, at such price and amount as, under all the circumstances, it (defendant) should consider right and proper.”

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 allegation and proof of bad faith, or that the sum fixed was unreasonable, the company was bound thereby. Fixing the wages by the general superintendent in the manner in which it was done did not change the obligation of the contract previously made, but was fulfillment of the same in relation to wages.

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 7 fixed at by the concurrence of himself and the general superintendent, and the court awarded a much less sum, it is apparent that the appellant has not been prejudiced thereby. As the plaintiff did not appeal, the judgment is conclusive as to him.

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 contract and with the evidence. In the equity case of Clawson v. Wallace, 16 Utah 300, 52 Pac. 9, this court held, in an opinion delivered by Justice MiNER, that the court in an equity case “may go behind the findings and decree of the trial court, consider all the evidence, decide on which side the preponderance thereof is, ascertain whether or not the proof justifies the findings and decree, and modify or set aside the findings and decree.” In the equity case of North Point Consol. Irr. Co. v. Utah & S. L. Canal Co., 16 Utah 246, 52 Pac. 168, 40 L. R. A. 851, 67 Am. St. Rep. 607, the court held that “it is only when the evidence as to a fact found to exist or not to exist, is so evenly balanced, or the proof is so unsatisfactory, as to cause the mind to hesitate and pause as to the side on which it preponderates, and leave the court in serious doubt, that the appellate court will be bound by the findings of the trial court.” See, also, Whittaker v. Ferguson, 16 Utah 240, 51 Pac. 980; Stevens Implement Co. v. South Ogden Land, Building & Improvement Co., 20 Utah 267, 58 Pac. 843; Schroeder v. Pratt, 21 Utah 176, 60 Pac. 512. The plaintiff testified that he was employed by the mining company early in December, ,1890, and that he served the company under such employment from the time of his employment up to August 16, 1894. 'In respect to the wages, the plaintiff further testified that William Groesbeck, the general superintendent, by whom he was employed, agreed to make the wages all right, and that he after-wards, on the sixteenth of August, 1894, with the concurrence of plaintiff, fixed the wages at the rate hereinbefore stated. This testimony of the plaintiff is not contradicted, except by the statement of William Groesbeck that he agreed to pay the plaintiff $3 per day, and he (the plaintiff) to board himself. William Groesbeck did not deny the statement of plaintiff in regard to the adjustment of the wages. His statement as to the wages agreed upon is different from the allegations of the answer upon that subject, and is irreconcilable with the rate of wages fixed in the adjustment of the same by himself and plaintiff. The preponderance of the evidence is clearly in favor of the plaintiff, and warrants the setting aside of 8 said inconsistent findings, and the making in their stead findings in accordance with, the clear preponderance of the evidence. We therefore set aside the inconsistent findings, and find that the mining company, in the contract entered into by the parties in December, 1890, agreed and obligated itself to pay to the plaintiff the wages afterwards fixed by the general superintendent, as follows: Six dollars per day from December, 1890, to September, 1893, and $60 per month from September 1, 1893, up to August 16, 1894. As the plaintiff, however, has not appealed from the judgment, which is 9 for a less sum, be is bound thereby, and in respect to him we can not modify or reverse the same.

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 10 not appear to have been raised at the trial, and is not one of the assignments in the petition in error, and was raised for the first time in appellant’s brief.

The seventh assignment is that the court erred in awarding 11 interest on the sum awarded. We do not think that the allowance of interest was error.

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.

MINER, O. J., and BARTCH, J., concur.