Davis v. Patrick

• Decision Date: 09 November 1891
• Citation: 141 U.S. 479,12 S.Ct. 58,35 L.Ed. 826
• Parties: DAVIS v. PATRICK
• Court: U.S. Supreme Court

141 U.S. 479

12 S.Ct. 58

35 L.Ed. 826

DAVIS v. PATRICK.

November 9, 1891.

STATEMENT BY BREWER, J. This case was commenced on the 24th day of November, 1880, by the filing of a petition in the district court of Knox county, Neb. Subsequently it was removed to the circuit court of the United States, and at the May term, 1883 of that court a judgment was rendered in favor of the plaintiff. That judgment was reversed by this court, at its October term, 1886. Davis v. Patrick, 122 U. S. 138, 7 Sup. Ct. Rep. 1102. A second trial, in January, 1890, resulted in another verdict and judgment for the plaintiff, and again the defendant alleges error. The petition counts on two causes of action. No question is made by counsel for plaintiff in error with respect to the first count or the rulings thereon; the only error alleged being in reference to the second count. That count is for the transportation of silver ore from the Flagstaff mine, in Utah territory, to furnaces at Sandy, in the same territory. In the first trial it was claimed that Davis, the defendant, was the real owner of the Flagstaff mine, and therefore primarily responsible for all debts contracted in its working. The relations between Davis and the Flagstaff Mining Company were disclosed by a written agreement, of date December 16, 1873. By that agreement it appeared that Davis, on June 12, 1873, had advanced to the company £5,000, at the rate of 6 per cent. interest, a sum then due; that it had sold to Davis, and agreed to deliver at the ore house of the company, free of cost, 5,195 tons of ore, of which it had only then delivered 200 tons, although Davis had paid in full for the entire amount. The agreement also recited that Davis was to advance an additional amount, if needed, not exceeding £10,000. It then provided that the mine should be put under the sole management of J. N. H. Patrick, to be worked and controlled by him until such time as the ore sold had been delivered and the sums borrowed had been repaid, with interest. This control was irrevocable, save at the instance of Davis. Coupled with this agreement was a full power of attorney to Patrick. This court held that such contract established between Davis and the mining company simply the relation of creditor and debtor, and did not make him, in any true sense, the owner. For the erroneous rulings of the trial court in this respect the judgment was reversed. In the second trial, this construction of the relations of Davis to the Flagstaff Mining Company was followed by the court, and the jury instructed that the contract put in evidence between Davis and the mining company created simply the relations of creditor and debtor, and did not make the former liable for expenses created in working and operating the mine; and the trial proceeded upon the theory that during the time the services sued for were being rendered Davis was the party mainly and pecuniarily interested in the working of the mine, and that he assumed to Patrick a personal responsibility for such services; and the real question tried was whether Davis' promises were collateral undertakings to pay the debts of another, and void because not in writing.

J. M. Woolworth, for plaintiff error.

[Argument of Counsel from pages 481-484 intentionally omitted] John L. Webster, for defendant in error.

BREWER, J.

That Davis was interested in having the ore transported to the furnaces is clear. He was interested in two respects: First, as to the 4,995 tons to be delivered to him at the ore-house, it being his property when thus delivered, any subsequent handling was wholly for his benefit; and in respect to the balance, as the transportation was one step in the process of converting the product of the mine into money, it would help to pay the debt of the company to him. Davis, therefore, was so pecuniarily interested in, and so much to be benefited by, the prompt and successful transportation of the ore, that any contract which he might enter into in reference to it was supported by abundant consideration. We proceed, therefore, to inquire what he said and did. After the execution of the papers, the newly-appointed manager took possession of the mine; and in the forepart of 1874 the plaintiff commenced the transportation of the ore under a contract with the agent of the manager. The business was carried on in the name of the mining company. The plaintiff understood that Davis was interested in the matter, though not informed as to the extent of the interest, or the terms of the agreement between him and the mining company. In the fall of 1874, Davis came to Utah to examine the property. He was introduced by the manager to the foreman of plaintiff, in the latter's presence, as the boss of the mine, to which Davis assented. After this, plaintiff, who had not received his pay in full for the services already rendered, bad an account made up showing the balance due him, and presented it to Davis. His testimony as to the conversation which followed is in these words: 'I showed it to Mr. Davis, and told him I was not getting my money, and Mr. Davis said my account was all right, and he would be personally responsible to me for the money, and for me to go on as I had been doing, and draw as little money as I could get along with to pay the men and the running expenses, and he would see that I got every dollar of my money.' The plaintiff's cashier, who was present at this conversation, gives this as his recollection of the conversation 'QUESTION. IN THAT CONVERSATION STATE WHat Mr. davis sAid about being responsible to A. S. Patrick for that account. Answer. He stated to Mr. Patrick, in my presence, that he would personally be responsible for that account. He says: 'You know, Al., I practically own this mine, but money is scarce, and we must get what we can out of the mine.' He says, 'We are making large expenditures for improvements;' and he says, 'You shall have all the money you want to pay your men and expenses, but you must wait for the balance, and I will see that you are paid.' Q. What did he say in that connection to A. S. Patrick about continuing on in the hauling of the ores? A. He requested him to continue in the hauling of the ores. He requested him to do it. Q. In response to Mr. Davis to that request, what did Mr. Patrick say? A. He said to Mr. Davis if he would guaranty him to be paid he would continue to work, and Davis said he would see him paid.'

After this, the plaintiff continued the work of transportation until the fall of 1875, receiving such payments from time to time as to extinguish the amount due him at the date of this conversation, and leaving a balance more than covered by the work done in 1875, and it is only for work done after these promises that this recovery was had, and in respect to which the questions presented and discussed arise. The plaintiff testified to another...