Dunyon v. Scranton Mining & Smelting Co.
| Decision Date | 31 October 1917 |
| Docket Number | 3017 |
| Citation | 168 P. 755,50 Utah 609 |
| Parties | DUNYON v. SCRANTON MG. & S. CO |
| Court | Utah Supreme Court |
Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.
Action by N. A. Dunyon against Scranton Mining & Smelting Co.
Judgment for plaintiff. Defendant appeals.
REVERSED.
Dey Hoppaugh & Fabian for appellant.
Howat Macmillan & Nebeker for respondent.
The findings of the district court and the issues presented here are within the pleadings, hence no further reference will be made thereto.
The defendant corporation was organized about the year 1900, under the laws of this state. The plaintiff was a director of the corporation from its organization to the date of filing this action. During all of that time he was its manager and had control of its mining operations within this state. The president, treasurer, and other directors were residents of the state of Pennsylvania, and the books of the company, except the record kept by the secretary, were in that state. Up until the year 1906 plaintiff received a salary of $ 100 per month. In that year, in the development of the mine, large bodies of valuable ore had been blocked out and his salary was increased to $ 350 per month. That continued until July 1, 1913. During the latter part of 1912, and in the early part of 1913, the mine did not produce sufficient ore to pay the operating expenses, and numerous letters were written between the plaintiff, as manager, and Mr. T. G. Wolf, as president, in regard to the operation and development of the company's mine. On or about July 10, 1913, the president of the company wrote the plaintiff and expressed anxiety over the exploration work being done and its results, and also some doubt as to his financial ability to hold out until ore in paying quantities was found, and also advised the plaintiff that there was interest then due on overdue notes, and that the company could not meet such indebtedness. He also expressed disappointment over the amount of money necessary to be advanced for the June pay roll. He then proceeded as follows:
In response to that communication plaintiff replied under date of July 29, and among other things stated:
"Nebeker and myself are perfectly willing to accept the proposition you make as to salaries, as we both have every confidence in the outcome of the property."
Prior to that, on June 9, 1913, plaintiff had written Mr. Wolf, in answer to a letter from Wolf dated May 27, saying:
That correspondence constitutes the contract under which plaintiff continued in the employ of the defendant as its manager until November 1, 1914. During that time plaintiff continued to have general control and direction of the development work carried on at defendants' mine. At the end of each month the pay roll and statement of the expenses of that month were forwarded to a Mr. Knapp, treasurer of the company, at Scranton, Pa., and a check or draft was returned by the treasurer to the secretary at Salt Lake City to pay such pay roll and expenses. All moneys received from the sale of ore were remitted to the treasurer during that time. The money necessary to meet the monthly pay rolls and expenses was either loaned or advanced to the company upon the indorsement of Mr. Wolf and other officers of the company, and the record discloses that from July 1, 1913, to December 1, 1914, the expenses connected with the development work exceeded the income something like $ 20,000. In the month of October, 1914, Mr. Wolf advised the plaintiff by letter that owing to the difficulty of obtaining money it would be necessary to curtail expenses, and on the 16th of that month wrote the plaintiff that he had talked the matter over with Mr. Knapp, the treasurer, and that a resolution had been passed by the directors fixing the plaintiff's salary at $ 100 per month from October 1, 1914. In answer to that letter the plaintiff wired Mr. Wolf that he could not accept the terms mentioned in the letter of October 16th and stated, "In case you dispose of my services * * * I will insist on immediate payment of back salary." Other correspondence was had between the parties concerning expenses and salaries and on November 23, 1914, Mr. Wolf, president of the company, wired plaintiff as follows:
As directed by that telegram the plaintiff stopped work on the mine, took an inventory of the property, disposed of a few items of personal property, procured a watchman to take charge of the mine and the property located thereon, and ceased his employment as such manager about the middle of December of that year. On the day following, to wit, Decem-16, 1914, this suit was instituted to recover what is termed "back salary," or $ 150 per month from July 1, 1913, to November 1, 1914.
Trial was had before the court. Findings of fact and conclusions of law were made and entered and judgment rendered in favor of plaintiff. Defendant appeals. The question for determination is, Has plaintiff a right, under the facts and circumstances above outlined, to recover?
If plaintiff is entitled to recover it must be upon one of two theories: First, that the contract for his salary was for a fixed and definite amount and that the date of payment was left indefinite, and, as a result, defendant would be presumed to have contracted to pay the same within a reasonable time; or, second, that the contract being definite as to the amount plaintiff was to receive and the date of payment being conditioned upon the happening of a future event, and the defendant having by its own act or conduct made the happening of that event an impossibility, then the amount became immediately due and payable. It may be conceded, under the authorities, that if the facts in this case--and there is not a disputed fact in the record--bring the plaintiff within either of the above propositions he is entitled to recover. Clearly he does not come within the first, and we do not understand that he seriously contends that he does. The chief contention of the respondent is that by reason of the president of the company suspending operations for the winter of 1914 he, by that act, rendered the happening of the contingency upon which the plaintiff would be entitled to recover impossible. Therefore, the amount of his salary being definitely fixed, the balance became due and payable, and he has the right to maintain this action.
Under such contracts, as in all other contracts, the controlling question is to determine, if possible, what was the real intent of the parties at the time of making the contract. In determining that question, the intention of the parties must be gathered from the language used, the situation of the parties, and the subject-matter of the contract as presented by the evidence. As stated, the written contract between these parties consists of the correspondence hereinbefore given. It is clear, it seems to us, considering the former relationship of the parties, the matter concerning which they were contracting, and the language used, that it was the intention of the parties to that agreement that the back salary should not "be exacted" until sufficient ore had been found to pay the interest on the indebtedness and to meet the current expenses. That seems to have been the proposition submitted by the president in his letter of July 10, 1913, and the one accepted by the plaintiff in his letter of July 29th. In that letter he stated:
"Nebeker and myself are perfectly willing to accept the proposition you make as to salaries as we both have every confidence in the outcome of the property." (Italics ours.)
It is clearly deducible from that language that the plaintiff, in continuing his services for the company after July 1, 1913, did not expect to receive payment from any source unless ore was found of such quality and quantity as to pay the interest on the indebtedness and the current expenses. In fact, in his communication he bases his willingness to accept the proposition not upon the ability of the defendant company to pay unless it found ore; but, as he states, "we both have every confidence in the outcome of the property." In addition, plaintiff was in charge, credited with knowing, and was supposed to know, much more than any of the other officers of the workings of the company's mine, how long it would take to find ore that would pay expenses, and in his letter of June 9, 1913, prior to the date of the letter which makes up the contract between the two parties, he says:
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