Ward v. Eastwood

Action fob Services—Mining of Quartz Bock Beady for Hoisting —Contract—Defense—Impossibility of Hoisting—“Act of God.”—In an action for services rendered by plaintiffs under an agreement proved and found that plaintiffs were to mine quartz rock for defendants, and to place it in the chutes ready for hoisting, at a fixed rate per ton, and that defendants were to hoist the same, to measure it at two buckets to the ton, and to pay in a succeeding month for all ore mined in the preceding month, and to keep the mine free from water, it is no defense to a recovery by plaintiffs for ore mined and left in the chutes unhoisted that the hoisting of the same by defendants was rendered impossible by heavy rains, and that the mine was flooded “by the act of God.”

Id.—^Performance of Contract by Plaintiffs—Time of Payment— Means of Measurement.—Where the plaintiffs had nothing to do with the hoisting of the ore, and the contract was performed on their part when they placed the ore in the chutes, the time and manner of payment, and the means adopted to measure the ore when hoisting it in buckets, did not affect the value of plaintiffs’ services to the defendant, or plaintiffs’ right to compensation therefor at the contract price for all ore mined and made ready for hoisting, though left unhoisted by defendants for any reason.

Id.—Cause of Failure to Hoist—Immaterial Omission in Finding. It is immaterial whether the failure of defendants to hoist the ore was caused by their negligence before the mine was flooded or was prevented by an unavoidable cause rendering the hoisting impossible, as alleged in the answer. It was not necessary for the court to find specifically upon the issue as to the alleged unavoidable cause which prevented defendants from hoisting the ore, where the court found upon other issues which were determinative of the judgment, and a finding in favor of appellant upon that issue would not justify a contrary judgment.

Id.—Means of Measurement Rendered Unavailable—Proof of Quantity of Ore Mined.—Where the means of measurement agreed upon were rendered unavailable by reason of the ore mined being under water, plaintiffs had the right to show by other means the quantity of ore mined and left in the chutes unhoisted.

Id.—Support of Finding as to Quantity—Conflicting Evidence.— Where the testimony as to the quantity of the ore remaining in the chutes was conflicting, and the court accepted the testimony of the plaintiffs, its finding for the plaintiffs on that subject cannot be disturbed.

Id.—Partnership of Plaintiffs in Net Proceeds—Agreement for Separate Payments—Misjoinder not Pleaded.—Where there was evidence that all of the plaintiffs were equal partners in the net proceeds of their mining, each man to be paid according to the time he worked, less his share of expenses, the fact that a statement was handed the defendants showing the amount due to each, and that by agreement between them each was to be paid separately, is not material, where there was no demurrer for misjoinder of the plaintiffs, and all of them had been recognized by the defendants as working under the contract alleged in the complaint.