Van Dusen v. Star Quartz Mining Co.
Before: Crockett
Synopsis
Appeal from the District Court, Fourteenth Judicial District, Uevada County.
The defendant was a corporation. The plaintiffs, prior to December, 1867, had furnished goods to the defendant upon the order of Withington, who was the foreman of the works and mine of the defendant. On the 11th day of December,
1866, Withington made the contract in writing with the defendant to run the tunnel referred to in the opinion of the Court. In January, 1867, Mr. Allen, one of the Trustees of the defendant, showed the plaintiff Van Dusen this contract, and he read it. Soon after this Withington commenced running the tunnel. Afterwards, and on the 6th day of July,
1867, Withington entered into another contract in writing with the defendant, by which he was to have the privilege of taking rock from the ledge and working the same in the defendant’s mill, at his own expense; and he was, after paying expenses, to apply the surplus of the proceeds of the rock to the work of prosecuting the tunnel. The plaintiffs had no notice of this contract. After this contract was made work was renewed on the mill and ledge, and work on the tunnel was prosecuted at the same time. The goods sued for were furnished, on Withington’s order, between the 8th day of May and 6th day of September, 1867.
The plaintiffs’ testimony tended to show that Ilershey had, for about five years before December, 1866, furnished the defendant with meat on Withington’s order, and continued so to do until September 9th, 1867, without any notice that Withington’s agency had ceased. Both the plaintiffs and Ilershey charged the goods on their account books to the defendant.
On the trial the plaintiffs introduced in evidence the declarations of Withington made to Van Dusen, plaintiff: First, in December, 1866, that “they were going to work on the tunnel, and wanted provisions, and that defendant would pay for them;” and second, in July, 1867, that “they were going to take out rock again and crush it, and wanted some more provisions, and the defendant was to pay for them.” To this testimony the defendant objected, on the ground that WithingtoiTs declarations were not binding upon the defendant; but the Court overruled the objection. The plaintiffs recovered judgment, and the defendant appealed.
The other facts are stated in the opinion of the Court.
By the Court, Crockett, J. : The plaintiffs sue for several amounts alleged to be due to them for goods sold and delivered. The first count in the complaint is on a special contract to the effect that the defendant promised the plaintiffs if they would furnish certain provisions to Withington & Co., who were running a tunnel for the defendants, and in the event that Withington & Co. failed to reach the ledge, the defendant would pay for the provisions. The averment is that the provisions were furnished on this agreement; that the rock turned out to be so hard as to be impervious, and Withington & Co. were unable to reach the ledge, and by reason thereof the defendant became liable under its contract to pay for the provisions.
The second is the ordinary count for the price of goods sold and delivered by the plaintiffs to the defendant; and the third count is for a butcher’s bill alleged to have been due from the defendant to one Iiershey, and which was assigned to the plaintiffs.
The plaintiffs had a verdict and judgment, and the defendant, having made a motion for a new trial, which was denied, has appealed.
The proof under the first count was, in some degree, conflicting; but, in our opinion, the weight of the evidence was in favor of the plaintiffs. At all events, we cannot disturb the verdict on this branch of the case, on the ground that the plaintiffs failed to prove their cause of action, as alleged.
The proof under the second count is, that one Withington had been for several years the foreman of the defendant’s quartz mill and mine, during which period he had been in the habit of ordering from the plaintiff:- provisions for the use of the hands at the mine and mill, and the bills therefor had always been paid by the defendant, without objection; [576]that in December, 1866, a written contract was entered into between the defendant, on the one part, and Withington and two other persons of the other part, whereby the- latter agreed to run a tunnel for the defendant, and on the terms therein stated; and it was a condition of the contract that if Withington & Go. should not succeed in reaching the ledge, the defendant was to defray the expense of the provisions used during the prosecution of the work; that the plaintiffs had notice of this contract, and that work was being done on the tunnel under it. There was evidence tending to show that work on the tunnel had to be abandoned before the ledge was reached, because the rock became too hard to be worked. The tunnel was therefore abandoned, and work at the mine and mill was resumed as formerly, Withington apparently acting as foreman, in the same manner as he had done before the tunnel was commenced. Under these circumstances he purchased from the plaintiffs the goods mentioned in the second count of the complaint, saying he was purchasing them for the defendant, who would pay for them.
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