Nevills v. Moore Mining Co.

CHIPMAN, C.

In January, 1885, appellant, William A. Nevills, and defendants John P. Jones, John Flemming, and D. C. Nichols, were owners of all the capital stock of a corporation called the Amador Tunnel, Mill, and Mining Company, whose property was situated in Amador County. Nevills was appointed superintendent of the company at a salary of $250 per month, and immediately began work on the mine. About three months later, in April or May, 1885, these same parties formed a mining copartnership for the purpose of working the so-called Moore mining property, which they purchased in 1884, and on which Nevills had a bond. At the request of his copartners, Nevills became superintendent also of the Moore mine, and he managed the active operations of both properties until about November, 1888. September 3, 1889, Nevills commenced an action in the superior court of

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said county against Ms copartners, alleging that he had made certain advances to the copartnership in excess of the amount due from him, and setting forth the amounts claimed to be due from each of his copartners. In this action William Flemming was made a defendant, as successor in interest of John Flemmmg, and one W. D. Garland was also made a defendant, as claiming some interest through defendant Nichols. An accounting was asked, and a dissolution of the partnership and a sale of the property to enforce the lien for the amounts due plaintiff.

On November 21, 1895, Henry F. Williams commenced an action for partition of the Moore mining property, claiming for himself an interest therein. The two causes were consolidated and transferred to Calaveras County for trial, and were there tried in November, 1898. At the trial Nevills claimed compensation as superintendent of the Moore mine for thirty-one months’ service, and for care subsequently bestowed on the property, and this is the issue now here for review. The court found that there was neither an express nor an implied agreement entered into by his copartners to pay Nevills any-, thing for his services, and it was so adjudged in the interlocutory decree, from which plaintiff Nevills appeals on bill of exceptions.

1. Whether there was an express agreement to pay appellant a salary for supermtending the Moore mine rests mainly upon his testimony. Upon this testimony the court found that no express contract was proved.