Busby v. Century Gold Mining Co.

• Decision Date: 09 February 1904
• Docket Number: 1488
• Citation: 27 Utah 231,75 P. 725
• Court: Utah Supreme Court
• Parties: THOMAS B. BUSBY, Respondent, v. THE CENTURY GOLD MINING COMPANY, a Corporation, Appellant

75 P. 725

27 Utah 231

THOMAS B. BUSBY, Respondent, v. THE CENTURY GOLD MINING COMPANY, a Corporation, Appellant

No. 1488

Supreme Court of Utah

February 9, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

Action for money had and received. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Price & McCrea for appellant.

Edward McGurrin, Esq., and Frank J. Gustin, Esq., for respondent.

McCARTY J. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to recover from defendant the sum of $ 603.75. The complaint, in substance, alleges: (1) The corporate existence of defendant; (2) that between the 16th day of October, 1897, and the 17th day of October, 1898, plaintiff loaned to defendant, at its special instance and request, and for its use and benefit, certain sums of money amounting to $ 603.75, which said defendant promised and agreed to repay plaintiff out of the first profits of its mines and property; (3) that more than a reasonable time has elapsed since the receipt by defendant of said sums of money; (4) that on the 15th day of November, 1901, plaintiff demanded payment of said sum from defendant, and that payment was refused; and (5) that there is now due and owing from said defendant to said plaintiff the sum of $ 603.75, together with interest.

Defendant's answer admits its corporate existence; "(2) admits that between the 16th day of October, 1897, and the 17th day of October, 1898, at divers and sundry times said plaintiff loaned to this defendant certain sums of money, amounting in all to the sum set forth in plaintiff's complaint, and that at the time of each and every of the loans so made as aforesaid this defendant entered into a contract and agreement to repay the same; (3) denies each and every allegation of the third paragraph of said complaint; (4) admits the allegations of the fourth and fifth paragraphs of said complaint."

The record shows that there were six loans made, and for each loan plaintiff received from defendant a written acknowledgment, of which the following are fair samples:

"Nov. 8th, 1897. Received from T. B. Busby seventy-five dollars, mutual loan 1 1-2 per cent, to be repaid from the first profits of the mine. Century Mining & Mill Co. By J. T. White."

"Dec. 13th, 1897. Received from Mrs. Thomas B. Busby one hundred and eight dollars, mutual assessment of 1 1-2 per cent, to be returned from the first profits of the company. Century Gold Mine & Mill Co. Per Jno. T. White."

"Oct. 17th, 1898. Received of Thos. B. Busby and wife two hundred and twenty and no-100 dollars, 1 per cent loan, balance, to be repaid in order from the first profits of the company. $ 220.00. Century Gold Mining Co. Per J. T. White."

Three years elapsed and the loans were not paid. The plaintiff then demanded payment, and, upon the defendant company refusing to comply therewith, commenced this action.

The cause was tried by the court sitting without a jury. The plaintiff, in support of his complaint, introduced in evidence the receipts mentioned, which he testified were receipts for money loaned by him; that they were given him by the manager and president of the company; that certain of the receipts were for money paid by his wife while he was away from home; that he had demanded payment, and same had been refused. On cross-examination plaintiff stated that at the time of the loans he was a stockholder of the company; that the receipts were for a mutual loan of a certain per cent. of the stock owned by plaintiff; that, so far as the money was loaned by the stockholders, it was based upon the par value of the stock which they owned in the company; that, when the loans were made, the company was in need of money, and had no other means of deriving it; and that the purpose of the loan was to give the corporation funds to carry on the work. "Q. That word 'mutual loan' referred to the fact that all the stockholders were in like manner making loans based upon the amount of their stock? A. No; it did not. Some of them didn't loan any at all; wouldn't loan any." No evidence was offered by defendant. The court found the issues in favor of plaintiff, and rendered judgment in his favor for the sum of $ 603.75, and interest thereon from the 17th day of October, 1898, at the rate of 8 per cent. per annum. Defendant appealed.

McCARTY, J. (after stating the facts).--The first contention of appellant is that by the terms of the written acknowledgment referred to in the statement of facts considered in connection with the circumstances and conditions, as shown by the evidence, under which the loans were made, payment was to be postponed until such time as the profits of appellant company would be sufficient to liquidate the indebtedness evidenced by the receipts or acknowledgments mentioned. Counsel for appellant say in their brief "that respondent expressly waived claim of payment except upon the happening of a contingency and the existence of a fund;" in other words, that respondent made the loans with the express understanding that in case no profits...