Pearson v. Post

2 Dakota 220

• Court: Supreme Court Of The Territory Of Dakota
• Decided: May 15, 1880
• Status: Published

Opinion

Moody, J.

This action was brought in the Lawrence County District Court, by the respondent Pearson, against one Alvin W. Whitney and the appellant Post, as co-partners, transacting business by the co-partnership name of the Keets Mining Company, to recover a balance alleged to be due him from said co-partnership for milling gold-bearing ores under, and damages ■ for the breach of, a milling contract, alleged in the complaint to have been entered into between the respondent of the one part, and the Keets Mining Company of the other part. The defendants answered separately. The appellant Post, by a general denial. The action was tried to a jury before the present Judge of said District Court, and a verdict and judgment was rendered and entered against both defendants, for $7,500 debt and damages. The defendant Post having unsuccessfully applied to the court for a new trial, has appealed to this court.

Upon the trial the respondent Pearson, without objection, read in evidence, for the purpose of establishing the existence of the contract alleged in his complaint, the following instrument in writing:

“Memorandum of an agreement made and entered into this 16th day of July, 1877, at Central City, Dakota, by and between A. W. Whitney, superintendent of the Keets Mining Company, parties of the first part and J. B. Pearson party of the second part. Witnesseth:

“ I. That said parties of the first part in consideration of the promises hereinafter mentioned, and subject to the conditions hereinafter stated, hereby jointly and severally undertakes, promises and agrees to deliver at the mill of the said party of the second part, at Central City, on Deadwood gulch, in the county of Lawrence and Territory of Dakota, gold-bearing ore from the vein, lode or deposit of mineral-bearing ore on the south side of Hidden Treasure Gulch, in the county and Territory aforesaid, and known as the “ Keets Mine,” for the purpose of being crushed and milled and the gold extracted therefrom.

“ Said ore is to be delivered at said mill in quantities sufficient from time to time by said parties of the first part, to constantly supply the working capacity of the twenty-stamp mill of the said party of the second part, now being run at Central City, and which capacity is about (30) thirty tons daily.

“ II. The said party of the second part in consideration of the delivery to him at his quartz mill at Central City, aforesaid, of gold-bearing ore from the “ Keets Mine,” do hereby undertake, promise and agree jointly and severally to run said mill constantly upon said ores while there shall be any at said quartz mill, and not to delay the crushing and milling thereof by running upon any other ores, for a' term ot (90) ninety days commencing on the 16th day of July, A. D. 1877, and closing on the 13th day of October, A. D. 1877. It is expressly understood that Ihe parties of the first part are to have the entire use of said twenty stamps as specified in the foregoing.

“ III. The said parties of the first part hereby undertakes, promises and agrees to pay the said party of the second part for crushing and milling said ore, the sum of nine ($9) dollars per ton for each and every ton crushed and milled, in the currency of the United States or gold dust, retort or bullion, at such rates as will make the sum equivalent to said currency, payment to be made alter each clean up.

“IV. It is further understood and agreed upon that said parties of the first part shall have access to said mill at any time during the contract for the purpose of examining and inspecting the working of said mill, and may be present in person or by agent, at any and all clean ups, and assist thereat at their own cost and expense.

“ V. It is further understood and agreed upon that no publicity shall be given of the yield of said ore by the said party of the second part, nor of the amount of ore so milled from said mine.

“ VI. It is turther understood and agreed upon, that if at any time the ore from said mine shall not pay the cost of mining and milling, or in in case of the mine failing to produce, then the said parlies of the first part after reasonable notice may terminate this contract. Such reasonable notice to be given at such time as will enable the party of the second part to get other ores to run his mill. That is (10) ten days notice.

“ Witness our hands and seals the day and year first above written.

“A. W. WHITNEY. [Seal.]

Slept. Keels Mining Co. ■

“JOHN B. PEARSON. [Seal.]

The respondent then offered evidence tending to prove, and offered to prove, who were the members, of said Keets Mining Company, that it was a co-partnership, composed of said Whitney and Post; that said persons were at the time of the execution of said contract, and during all the time when it was, by its terms, in operation, before and since, co-partners, doing business under the firm name of the Keets Mining Company; that the Keets mine, mentioned in said contract, was the property of said co-partnership; that the business of mining and milling the ores from said mine, the crushing and milling of which was thus contracted for, was the business of said co-partnership, and was by it carried on and conducted, and that the benefits derived from said contract inured to said firm; that said Whitney was the superintendent of said co-partnership business, and acted in all things relating to the mining and milling of said ores for and on behalf of said co-partnership, and that said Post received and disposed of the retorts and bullion, which was the produce of said mining and milling, under said written contract.

To all of this evidence, the defendants objected, as tending to explain, vary and contradict the terms of the written contract. The objection was overruled by the court, and the appellant Post excepted, and the evidence was received.

After adducing further evidence, showing a balance due him for milling under, and a breach of, the contract, by the defendants, and the damages, plaintiff rested.

At the close of plaintiff’s testimony, the defendant Post read in evidence, without objection, the record of an order made in the same action, by the former Judge of the District Court, — Me. Justice BenNEtt, — sustaining a demurrer by Post to the plaintiff’s original complaint, wherein the contract in-question was set out at length, as an exhibit; which demurrer was for a misjoinder of parties and for insufficiency, and in which order the plaintiff was given thirty days leave to serve an amended complaint. Of such leave, plaintiff availed himself, and his amended complaint is the one in the transcript here. Upon, producing said record, defendant Post moved the Court to order a non-suit of the plaintiff, as to said Post,' which motion was denied, and excepted to.

At the close of the trial, the defendant Post requested the Court to instruct the jury, that the order of the Court, (designating it a judgment,) on the separate demurrer of defendant Post, to the original complaint of plaintiff, is a bar to a recovery against him now, in this action, and that they should, therefore, find for him. Which request was refused, and the defendant Post excepted.

Thus two questions are supposed to be presented for determination by this court; and I state them in the order of importance given to them in appellant’s brief:

First — Was the order of the former Judge of the District Court, sustaining the demurrer of Post to the plaintiff’s original complaint, and giving plaintiff thirty days leave in which to serve an amended complaint, a bar to the further prosecution of the action against him.

Second — Was it error to admit evidence of who composed the Keets Mining Company, and were, therefore, liable under said written contract, and of the conduct of the business connected therewith ?

The seriousness and earnestness with which the able counsel for the appellant in their brief, press the first proposition, lead this court to give it more attention than it would ordinarily seem to demand. Counsel in their brief say: “ It is upon the fourth alleged error of the Court that appellant most strongly relies.’ The fourth error assigned, being: “ That the Court erred in refusing to instruct the jury, that the judgment on demurrer theretofore rendered in said action, was a bar to a recovery against the defendant Post, and that the jury should find for the said defendant.”

It will be observed, that there was no judgment entered upon 'the order. That the action of the Court was an order merely, and not a judgment. That such order sustained the demurrer, and gave plaintiff leave to amend his complaint, and that within the time allowed by the order of the Court, the plaintiff served and filed his amended complaint, and the action proceeded.

No doubt the sustaining of the demurrer was an expression of thé then presiding Judge’s views regarding the contract; and possibly the Court’s opinion, as then constituted, that such contract could not in any manner, or by any proof, be made of binding force or effect upon the defendant Post. If such were and continued to be the Judge’s views and opinion, probably he would have sustained an objection to the introduction of the contract in evidence, if one had been made by Defendant Post, no matter what proofs had been offered in connection therewith, as not tending to prove the allegation of a contract made by the copartnership, the Keets Mining Company; but is there any rule of practice, or principle of law, which would preclude his changing his views, upon further reflection and examination, and admitting it in evidence, as the contract of the Keets Mining Company ? I apprehend not, and if not, certainly the succeeding Judge of that Court, was not barred from exercising his own judgment, as to the effect to be given to the instrument offered. Of course this question has no connection with the further question, as to what was the legal effect of the contract in controversy. I am treating this point as it is presented in .the record. Was the order thus made without judgment, a bar to the further prosecution of the action, for the same cause of action ?

From such an order no appeal lies. Harris Mfg. Company v. Walsh, decided in this Court, term, 18.. The effect of sustaining this proposition of counsel, would be to hold that all orders, sustaining demurrers to complaints, for insufficient statement of cause of action therein, are bars to the further prosecution of the action for the same cause of action, and parties would be compelled to abandon .their actions in such cases, or elect to stand upon the demurrer, and let judgment be entered thereon, to enable them to have a review by the Appellate Court. Such a rule of practice would be regarded as absurd, if it could be established under the law. But it cannot. If the plaintiff has, and can state, a cause of action, it is the duty of the Court, in the exercise of a just and sound discretion, upon sustaining a demurrer, to allow him to- amend his complaint, imposing conditions when proper, and then the plaintiff may elect, at his option, to let judgment be entered upon his demurrer, or to amend, and if he can so state the facts in his amended complaint as to reach a trial, or upon restating the facts, the defendant does not again demur, he may have the same questions as were presented by the demurrer, heard and determined at the trial, and the order sustaining the demurrer is, in no sense, a bar to the further prosecution of the action, or to a recovery, if, upon the trial, it is determined that he is entitled to recover. It is not impossible, that a Judge having sustained a demurrer to a complaint, may, upon an amendment of the complaint, stating the same facts in different language and order, upon further argument and consideration, change his opinion, and sustain the amended complaint. No one would contend that by any principle of law or rule of practice, his first views were unchangeable, or that he was barred, or precluded, by his first order, and that the only remedy of the parties, and the only mode of procedure, was to return to the original complaint, and rescind and expunge the order sustaining the demurrer thereto.

It is useless to continue this discussion further. The order sustaining the demurrer to the original complaint, in no way operated as a bar to a recovery upon the trial; the pleadings then consisting of the amended complaint and the defendant’s answer thereto.

The cases cited by counsel in support of their proposition, and to the effect that a judgment entered upon an order sustaining a demurrer to a complaint, is equivalent in certain cases, to a judgment upon the merits, and it is a bar to another action for the same cause of action.

Those cases have little or no bearing upon this. The principle there involved cannot be applied to the question here. The propositions are in no wise analagous.

A more serious question arises upon the construction to be given to the instrument set out in the record. If it was the contract of the Keets Mining Company, then evidence of such company being a co-partnership, of who composed that company, of the conduct of the business under that contract, and in relation thereto, for the purpose, of charging the defendant Post with liability thereunder, was clearly admissible. If it was only the contract of the defendant Whitney, then any evidence of the character stated, was immaterial as against the appellant Post, and no recovery thereon could be had against him.

Much, stress is laid by couusel for appellant upon the fact that this contract is under seal. I do not think this affects the question in any way. If upon its face, it is the contract of the Keets Mining Company, the seal may be treated as the seal of that company. Moreover our Statute, Civil Code, Sec. 925, provides; “ All distinctions between sealed and unsealed instruments are abolished.”

This contract was read in evidence without objection. It was proper to explain it, so far as it could be explained, by evidence of the circumstances under which it was made, and the matter to which it related. (Civil Code, Sec. 938.) The contract upon its face was between A. W. Whitney, superintendent of the Keets Mining Company, parlies of the first part, and J. B. Pearson, party of the second part.

The parties of the first part, agree to deliver the ore from the Keets Mine — the property of the Mining Company — to the plaintiff's mill.

The parties of the first part, are to have the entire use of twenty-five stamps of plaintiffs mill for ninety days.

The parties of the first part, are to have access to the plaintiff's mill, for certain purposes, either in person or by agent, and may assist at all clean ups at their own cost and expense.

The parties of the first part, may by notice terminate the contract, etc.

Finally it is signed by Whitney signing himself “ Supt. Keets Mining Company.”

What, is plainly inferable from this instrument, was the intention of Whitney. Can it be doubted that he intended to bind the Keets Mining Company ? If he did, then that company is bound by it. Any doubt which may linger around the question as to what is the proper rule of law to apply to transactions of this character, by reason of the apparently conflicting decisions of other States or Territories, is resolved by the provisions of our Civil Code, Sec. 1373, as follows: “Any instrument within the scope of his authority by which an agent intends to bind his principal does bind him if such intent is plainly inferable from the instrument itself.!' Whitney was a co-partner in the co-partnership, called and transacting business as the Keets Mining Company. He was the active member of the firm, and the superintendent of its business. This instrument was clearly within the scope of his authority. Placing ourselves in the position of the parties, as we have a right to do, and viewing the surrounding circumstances from their standpoint, we perceive the contract relates to the manipulation of, and making productive, the co-partnership property, the turning into usefulness — into gold bullion — the very property itself. That the party signing as superintendent was such, and had the conduct and management of the company’s business, and when we take into consideration all the surrounding circumstances, the situation of the parties, the subject matter of the contract, the relation of the parties thereto, its peculiar wording, the manner of signing, and that the co-partnership did actually carry on and conduct the business under, and reap the benefits of, the contract, and enjoy the use of plaintiffs mill by reason thereof, and examine the instrument in the light of all these facts, the inference therefrom is not only plain but conclusive that it was the intention of this agent of the firm, this superintendent, this member, to bind the company; as well as that of the other party that it should be bound. And if such being the intention, thus plainly to be inferred from the contract, the company was bound by its terms, the defendant Post, as well as the other parties.

It follows that it was not error to admit the evidence objected to nor to refuse the instruction asked.

And no error appearing in the record the judgment of the District Court is

Affirmed.

All the Justices concurring.