Calloway v. Oro Mining Co.

ALLEN, P. J.

Action for personal services of plaintiff and assignors. Judgment for plaintiff; new trial denied. Appeal by Florence A. Stongh, one of the defendants, from the order denying a new trial.

It appears from the record that Mrs. Stongh, the appellant, on July 16, 1902, was the owner of mining property in San Diego county which was subject to an executory contract of sale, under which the Oro Mining Company, a corporation, was in possession. Plaintiff and three others were engaged in work on the mine for the corporation, and becoming dissatisfied by reason of default in the payment of their wages, determined to quit work and to institute proceedings to collect their unpaid wages. Mrs. Stongh, being

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informed of this threatened action upon the part of the employees, authorized one Mullins, a stockholder in the corporation, to agree with the workmen that if they would continue at work and keep the mine free from water, she would pay them their wages when she obtained possession of the mine. ' This promise and proposition Mullins communicated to the men and they continued at work on the mine until November 7, 1902, at which date the appellant obtained possession of the mine. She, however, refused payment and the workmen all made out an account, which upon its face was a statement of wages due from the Oro Mining Company, a corporation, claimed to have been earned between April and December, 1902, being the aggregate of the wages due from the corporation before the agreement of appellant and that earned by them after such agreement. These statements of account all of the workmen, except plaintiff, assigned to plaintiff, who thereupon brought this action against the corporation, Mrs. Stough, her husband, and certain stockholders in the corporation.

In the original complaint it was averred that the promise to pay for the labor after July was made by Mr. and Mrs. Stough. More than two years after the maturity of the claim, the complaint was amended by an allegation that the contract was with Mrs. Stough alone. Appellant makes the point that this amendment changed the cause of action, and that more than two years having intervened between the maturity of the claim and the filing of the amended complaint, the statute of limitations barred recovery. The action, however, was upon the obligation which was sought to be enforced, and which, under the original complaint, was a joint and several obligation. There was no change in the cause of action by the filing of the amended complaint, the effect of which was to dismiss the action as against one of the defendants. The time to which the statute of limitations runs is the filing of the original complaint.