Steinegul v. Northern Electric Co.

CHIPMAN, P. J.

Plaintiff brings the action as assignee of twenty-four separate claims for labor performed by certain Japanese for defendant, aggregating $804.

The cause was tried by the court and plaintiff had judgment, from which defendant appeals on bill of exceptions.

The court found that defendant admitted on the trial of the action “that all of the persons named in the complaint had performed labor for the number of days stated in said complaint.” The court also found that the defendant hired said persons at the agreed price of $2 per day for ordinary laborers and $2.50 per day for foremen.

The sole point in dispute is whether the men were employed by the defendant and to be paid by the defendant, or whether the contract of employment was made with one Howe upon what is termed a “force contract”—i. e., Howe to furnish the men and to pay them and the company to pay Howe. No controversy arises over the rate of the wages to be paid, for that fact appeared substantially without conflict, as well as the fact that the men performed the labor claimed in the complaint.

[19]

The contention of appellant is that the findings rest mainly upon the testimony of witness Howe, which, it is claimed, was shown by the cross-examination to be “inherently improbable,” besides being flatly contradicted by several of defendant’s witnesses.

We do not feel disposed to spend much time in a discussion of the testimony. We have carefully read all the evidence and do not discover any such inherent improbability in witness Howe’s testimony as would justify its rejection. The contract was made by him, as he testified, for the Japanese by telephone communication with defendant’s engineer, Barnes, who had authority to make it. Howe testified that the agreement was that the men were to work for defendant and to be paid by defendant; that there was nothing said at the time about a “force contract,” and that he had no interest in the wages and was not to pay the men, nor was he to receive their pay. A telephone operator present in the telephone office when the contract was made corroborated Howe in some particulars. There was evidence that the laborers themselves understood that they were working for the company. There was evidence sharply conflicting with Howe’s testimony, and tending to show that the contract was of the class known as a “force contract,” and Barnes so testified. But the credibility of the witnesses, as well as the matter of reconciling the conflict in the testimony, was to be determined by the trial judge, and we find no sufficient warrant in the record for taking from him this responsibility.