Wilbur v. Kemp

McCOMB, J. Prom a judgment in favor of defendants after trial before the court without a jury in an action to recover money alleged to be due for the performance of labor and the furnishing of materials, plaintiff appeals.

Disregarding conflicting evidence the record discloses substantial evidence to sustain these facts:

Plaintiff and defendant Mecham were partners in the ownership of a rod mill. Defendant Mecham introduced to [788]plaintiff defendants Scott and Moffett, who knew where there was a mine which could be leased. On August 22, 1944, these four men entered into an agreement to secure a lease on the mine and organize a corporation. The parties were to receive the following number of shares of stock in the corporation: “Wilbur, 25% (1250 shares), Mecham, 25% (1250 shares), Scott, 10% (500 shares), Moffett 10% (500 shares).”

A lease was secured upon the mine for $600, $400 of this amount being paid by defendant Mecham, and $200 by plaintiff. Prior to the securing of the lease the parties had started to build a road to the mine about September 27, 1944. This road was completed about January 15, 1945. Plaintiff furnished most of the equipment and did most of the work on the road. He was assisted by defendant Scott and defendant Moffett who did the cooking for himself and his associates.

On February 16, 1945, a Nevada corporation was organized under the name of Condor Mines, Incorporated. The lease which had been obtained on the mine was assigned to the corporation and stock was issued to each of the parties as provided in the agreement mentioned above. In addition defendant Dibblee was sold 600 shares of treasury stock for the sum of $5,000 cash. Defendant Mecham sold 200 shares of his stock to a Mr. Kemp for $2,000. It is to be noted that Mr. Kemp was not connected with the venture in any way until after the corporation was formed. It was agreed that on and after April 1, 1945, plaintiff and defendants Moffett and Scott were to receive a salary of $200 per month. This sum was paid to each of these parties until August 1, 1945. Plaintiff, however, was not paid for the period from August 1 to August 16, 1945. About the latter date the corporation ran out of money and an emergency meeting was held on August 16, 1945, to determine what should be done about the corporation’s debts. Plaintiff, defendants Kemp, Mecham and Dibblee were present at such meeting.

It was concluded by the parties present that the total debts of the corporation amounted to about $1,200, whereupon defendants Kemp, Mecham and Dibblee each agreed to loan the corporation $400 to pay its debts. Mr. Kemp was to act as trustee for the others. Such' sums were advanced, except that Mr. Dibblee advanced only $325.