Lynch v. McDonald

MELVIN, J.

Plaintiff and appellant sued on a certain written contract and obtained judgment according to the prayer of his complaint against the defendant corporation. The superior court entered judgment dismissing the complaint

[705]

as against M. Jasper McDonald individually and this appeal is taken from that part of the judgment. The contract upon which the action was based was drawn (as were other contracts put in evidence) by the plaintiff who had been for a long time the attorney for the mining company and for McDonald. The contract recited the services of Lynch as attorney and mining expert and provided for the payment to him for such services from the sale of a group of mines at Amador City, owned by the Keystone Consolidated Mining Company, the sum of twenty thousand dollars; and in case there should not be an early sale of said property the said sum of twenty thousand dollars was to be paid from the monthly proceeds of the mine not to exceed ten per cent of the net profit. The agreement also contained a provision for the payment of a salary to Lynch for legal and other services to be rendered. This contract was dated March 1, 1901. While in form it was between the corporation and McDonald on the one part and Lynch on the other, it was signed by McDonald only in his capacity as president of the corporation, by Anderson as secretary thereof, and by plaintiff. The court found: “That the provision of the contract set forth in the complaint, as follows: ‘Said parties of the first part hereby employ the party of the second part to render all such services for three years from date hereof; and it is agreed that said Lynch shall be paid by the parties of the first part $150.00 per month for said services,’ was continued in force by two certain agreements entered into and executed by and between said defendants and said plaintiff, dated February 12th, 1904, and September 27th, 1904, wherein and whereby reference was made to said contract dated March 1st, 1901, copied in the complaint, and it was provided in each of said agreements, dated February 12th, 1904, and September 27th, 1904, that ‘the agreement made March 1st, 1901, between the said parties as are contracting hereby providing for payment to said Lynch of $150.00 per month shall remain in full force and effect until the provisions thereof are fully performed.’ ”