Bee v. San Francisco & Humboldt Bay Raillroad

By the Court, Niles, J.: 1. It was admitted that the plaintiff was Superintendent, under the appointment of the defendant, from the 6th of March, 1868, until the 28th of May, 1869. The evidence was amply sufficient to support the finding of the referee, that there was no special agreement for the plaintiff’s compensation. He was, therefore, clearly entitled to receive the value of his services in the capacity of Superintendent. Appellants urge, as their principal ground of error, that evidence was admitted at the trial, of services rendered by the plaintiff, entirely distinct from those appertaining to the office of Superintendent. Very much of this evidence does not appear to have been objected to at the time it was offered; but at one stage of the proceedings a motion was made to strike it out, and by consent of parties, the ruling upon the motion was reserved until the final argument of the case. There does not appear to have been any direct ruling upon the question at the time of the final argument. The referee, however, in his findings, held that the plaintiff could not recover for extra services rendered during the time of his employment, without a special agreement for extra compensation; but held also that the services to which the defendant objected were rendered in the line of plaintiff’s duty as Superintendent, and under the direction of the defendants.

[255]We think this finding was sustained by the evidence. Although actual work in the field, in the construction of the road, was not commenced until several months after the appointment of the plaintiff, he appeared to have been actively and efficiently employed during the interval in the interest of the company, in business of importance preliminary to the construction of the road. While the work which he performed may not be technically within the line of a Superintendent’s duty, it was work which that officer, as the servant of the company, might be directed to do; and having performed the labor, at the company’s request, while holding the office, it will be presumed that he acted in an official capacity. As the plaintiff was only allowed for his services as Superintendent, and nothing for the extra services claimed by him, we see nothing in the finding of which the defendant can justly complain.

2. The testimony of the witness Turney as to conversations between the plaintiff and the acting Directors of the defendant, during the period of the plaintiff’s employment, was admissible to show his dissent at that time from the amount of salary proposed by certain of the Directors, and that it was not then considered, by him at least, as a fixed and stipulated sum.