Sullivan v. Grass Valley Quartz Milling & Mining Co.

Works, J. The appeal in this case is from a judgment in favor of plaintiff, and comes up on the judgment roll.

The complaint is to recover fifty-six dollars, and to enforce a mechanic’s lien therefor. It is alleged that the plaintiff was “employed by the defendant through one John Reilly, its secretary,” to run fifty feet of tunnel on the defendant’s mine, and was to receive therefor three dollars per foot, the defendant to furnish certain tools and materials, the price to be paid, one third as the work progressed, and the remainder at the completion of the work; that work was commenced on said tunnel, and continued until the defendant failed to furnish the material, “ and by agreement of all the parties the contract was terminated”; and that the value of the labor has been paid, except the sum of fifty-six dollars.

The complaint also contains the necessary allegations to entitle the plaintiff to a mechanic’s lien.

There is a demurrer to the complaint on the grounds, —1. That it does not state facts sufficient to constitute a cause of action; 2. It is ambiguous, unintelligible, and uncertain in that,—{a) it does not appear therefrom [420]that Reilly, the secretary of the defendant, had authority to make the contract sued on; (b) it cannot be ascertained from it whether it is sought to recover the value of the services rendered, or a balance due under the contract. The demurrer was overruled.

The defendant, by its answer, denies the making of a separate contract with the plaintiff, and alleges affirmatively that it did enter into a joint contract with the plaintiff and one Lehey, by which said parties agreed to do the work mentioned in the complaint; that the work was done by them under such contract, and paid for in full.

The case was tried by the court.

The court finds in substance:—•

1. That the defendant, through its secretary, entered into the contract with plaintiff, as set out in the complaint, and in addition, that it was agreed that if, during the work under the contract, he found work at wages elsewhere, he might terminate the contract.

2. That about the same time the defendant, through another officer, inadvertently let the same work to Lehey on the same terms, except as to the privilege given to terminate the contract.