Ballou v. Sunflower Gold Mining Co.

THE COURT.

This is an appeal by defendants from a judgment in favor of plaintiff for the sum of $1,825, and from an order denying their motion for a new trial.

The prayer of plaintiff’s complaint was for the enforcement of an alleged miner’s lien on certain property alleged to belong to the defendants, and for a personal judgment against

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defendants for any deficiency remaining due on plaintiff’s claim after sale of property. The claim was for $14,545, being for 2909 days’ labor at five dollars per day, performed between November 30, 1901, and October 23, 1909. The statute of limitations was not interposed as a defense. The trial court concluded that plaintiff was not entitled to a lien. It found that between November 30, 1901, and October 23, 1909, plaintiff worked for defendants for 365 days and no more, and gave him a personal judgment against defendants for $1,825, being at the rate of five dollars per day.

1. In his complaint plaintiff alleged the terms of his employment, including an express promise on the part of defendants to pay him five dollars per day for his services, together with his board and lodging. It was further alleged that it was agreed that he should wait a reasonable time for his money, and that the same should become due when his services should finally terminate. It was further alleged: “The amount due and for which defendants are indebted to plaintiff is $14,545, for 2909 days’ labor performed at said rate. The defendants had the use and benefit of such labor which was reasonably worth said sum.”

All of these allegations were specifically denied in the answer of the defendants.

The trial court found upon these matters that on or about November 30, 1901, “defendants employed plaintiff as superintendent and as a miner to perform services on the property of the defendants and defendants promised to pay said plaintiff for his labor”; that plaintiff worked between November 30, 1901, and October 22, 1909, 365 days and no more; that “his services were reasonably worth the sum of five (5) dollars per day,” no part of which had been paid; and that “the defendants had the use and benefit of such work. ’ ’ There was no finding upon the issues as to what the agreement was in regard to the amount and method of compensation, if any such agreement was made.