Abner Doble Co. v. McDonald

SMITH, C.

The plaintiff sues to recover the sum of $7,269.75, as balance due on an account for goods sold and delivered to the defendant, and for work and labor done for him at his request. The allegations of the complaint are denied;, and a counterclaim is set up by the defendant, by answer and cross-complaint, for the sum of $383.60 paid by the defendant to the use of the plaintiff at its request. The goods in question consisted of mining machinery; and the work and labor counted on by the plaintiff was done in installing the same in the Cover Mine, the property of the Cover Mining Company. The money expended by the defendant was expended in the installment of the same machinery. The findings were for the defendant on all the issues, and judgment was entered in his; favor for the sum demanded in the cross-complaint, with costs. The appeal is by the plaintiff from the judgment and from an order denying its motion for a new trial. The questions involved are as to the sufficiency of the evidence to justify the findings of the court.

At the time of the transactions in question the Cover Mining Company was heavily indebted, and without assets except the mine; and this had been attached, and was in imminent danger of being ruined for lack of funds to keep it free of water. The plaintiff was heavily interested in the company as a stockholder and creditor, and was also its surety for an indebtedness of fifteen thousand dollars (secured by mortgage on the mine), and for other indebtedness, to the Anglo-Californian Bank. It was represented in the management of the

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mine by two of its own managers, Robert and William Doble, who were directors of the mining company, and with its president, Emery, appear to have had the management and control of it.

Under these circumstances, in the early part of September, 1894, the defendant, McDonald,—who prior to the transactions in question had no interest in the mine—was applied to by Emery and Robert Doble—as the former says—“to take hold of the mine” and to “keep [it] clear of water so that we could sell it”; for which purpose it was proposed to put the mine “in his hands to sell.” Robert Doble’s account of the matter is somewhat different. It is, in effect, that he proposed to McDonald to purchase the bank mortgage, and to acquire the mine by foreclosure; and he assured him that the plaintiff would not spend any more money on the mine. The implication seems to be that the plaintiff abandoned its interest in the mine to McDonald; but the evidence does not go to this extent. The last conversation between this witness and McDonald took place on September 7th or 8th, and on the 13th William Doble approached McDonald on the same subject, referring to the previous interview between Robert and McDonald; but the latter “had not arrived at a definite conclusion.” But on the next day, the 14th, the witness says McDonald told him “that he had considered the matter favorably, and had decided to take up the Gover matter, and requested [the witness] to send a telegram to [his] brother Robert”; which was done accordingly—the telegram being written or dictated by McDonald. The witness adds: “Before I went, McDonald had stated that he had decided to take up the Gover proposition, and I completed my mission when I sent the telegram which he requested,” etc. The telegram alluded to—which is of date September 14, 1894, and addressed to Robert Doble—and signed by William—is as follows: “McDonald has authorized Hale to keep water out of Gover under your directions.” Hale was the superintendent of another mine for McDonald, and was instructed by telegram of same date: “Take charge under Robert Doble of Gover Mine. Keep water out at my expense. Will write.” At the same time McDonald wrote him: “I have wired you this p. m. to take charge of Gover under Doble, to keep water out. Bank will not do it, and they will get into more trouble if the mine