Donohoe v. Trinity Consolidated Gold & Silver Mining Co.

Henshaw, J. Appeal from the judgment and from the order denying a new trial.

Plaintiff's action was to foreclose a lien for the value of labor performed upon the mining claim of the Trinity Mining Company. The bank was made defendant as claiming some interest in the**property, which interest, it was averred and not denied, was subordinate to plaintiff's lien. The mining company suffered default. The bank answered, admitting all of plaintiff's allegations, saving that it denied plaintiff’s employment, his labor, its value, and nonpayment.

The labor, its value, and nonpayment were proved, and no question arises upon any of these matters. Plaintiff had alleged that he was employed as a miner by one Bernard McCourt, the duly authorized foreman and agent of the mining company. Upon the trial he undertook to establish this by proving that McCourt was appointed foreman by one Champion, who was the superintendent in charge under authority of the Trinity Consolidated Company. This company, it is admitted by the pleadings, was incorporated under the laws of the territory of Utah, with its principal place of business in Ogden. The admissibility and sufficiency of the evidence to establish these agencies of Champion and McCourt are made the contention upon this appeal, presented under objections to the reception of the evidence, and also by attacks on the findings based upon it.

The evidence adduced by plaintiff was the following: The plaintiff testified that McCourt employed him. McCourt was acting as foreman, and McCourt himself and Champion, the superintendent, both told him that McCourt was foreman. Champion acted as superintendent, and told witness that he was superintendent. He had no other knowledge that Champion had been authorized to act as superintendent by the company. McCourt testified that he was employed to act as foreman by Champion, and did so act, with authority to employ and discharge laborers. He employed plaintiff as a miner. Champion was superintendent. Acting as [122]superintendent he purchased and shipped quartz-mill machinery to the mine; caused a ten-stamp mill to be erected, and crushed the ore extracted from the mine in this mill. Champion, as superintendent, also posted notices about the mine, and on the mill, to the effect that the Trinity Company was the owner of the property. He knew of Champion’s authority only from statements, and from his actions as superintendent. James EIsaacs testified that Champion had repeatedly told him he was managing agent and superintendent of the corporation. He had examined the record of conveyances of property, and of proceedings in a suit against the company brought by the defendant Shasta Bank. This suit was for money had and received. The complaint averred that Champion was the vice-president and managing agent, and, as such, was doing business by authority and direction of the Trinity Company. In this action the Shasta Bank accepted a waiver of the issuance of a summons, and an acknowledgment of service of the amended complaint, on behalf of the Trinity Company, defendant therein, from Champion, who described himself “as managing agent and superintendent” of the corporation, and upon this admission entered the default of the mining company, took judgment and sold the property. It is admitted that the Utah company did own the property. There was introduced in evidence the record of a lien filed by Champion against the company for a sum due him for services as superintendent and managing agent. There were introduced records of locations of water ditches and rights, and mining claims made by the company through Champion, its agent.