Cowan v. Abbott

Temple, C. Appeal from an order denying defendants’ motion for a new trial.

Plaintiff sued defendants, as mining partners, to recover for services alleged to have been rendered as superintendent of their mine.

The complaint contains two counts. In the first he avers that he performed labor for defendants between certain dates at their request, and that said services are reasonably worth $3,050, of which amount defendants have paid $650 only, leaving $2,400 still unpaid.

In the second count he avers an express contract, by which defendants agreed that if plaintiff would take charge of their mine, pump out the water so that it could be worked, and thereafter manage, work, and mine it, they .would pay him the salary usually paid to mining engineers and superintendents, which he avers was reasonably worth three hundred dollars per month, and in case he succeeded in keeping the water out for six months, they would pay him a further sum, as a bonus, of one thousand dollars.

The defendants, answering separately, deny specifically each allegation in the complaint, except that they admit that plaintiff performed certain service for them, but not as a mining superintendent; that the service continued from the 1st of March to the 29th of October, 1888. They aver that he was employed to take charge of the machinery and pumps; that he was fully paid long before the commencement of this action.

There was no error in refusing to compel the plaintiff to elect upon which count of his complaint he would rely. The two causes of action arise out of contracts, [102]and can therefore be joined under section 427 of the Code of Civil Procedure. Theoretically, they are distinct causes of action, and there is no requirement that they shall correspond or be consistent with each other.

As defendants did not rely upon their motion for a nonsuit, the question now is as to the sufficiency of the evidence to sustain the decision. We fail, however, to discover the variance complained of.

Plaintiff testified, in effect, that if he did riot get the water out and keep it out, so the mine could be worked for six months, he should receive no pay; but if he did so, he should be paid a salary, the amount of which was not agreed upon, and one thousand dollars bonus.