Dwyer v. Salt Lake City Copper Manufacturing Co.

• Decision Date: 10 November 1896
• Docket Number: 694
• Citation: 14 Utah 339,47 P. 311
• Court: Utah Supreme Court
• Parties: DANIEL DWYER, PLAINTIFF, v. SALT LAKE CITY COPPER MANUFACTURING COMPANY ET AL., DEFENDANTS

47 P. 311

14 Utah 339

DANIEL DWYER, PLAINTIFF, v. SALT LAKE CITY COPPER MANUFACTURING COMPANY ET AL., DEFENDANTS

No. 694

Supreme Court of Utah

November 10, 1896

Appeal from the Third district court, Territory of Utah. Hon. S. A Merritt, Judge.

Action by Daniel Dwyer and others against the Salt Lake City Copper Manufacturing Company and others. Judgment for plaintiffs. Defendant Otto Stallman, appeals.

Affirmed.

Loofbourow & Kahn and Dickson, Ellis & Ellis, for appellant.

Frank Pierce, for respondents.

BARTCH J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

It appears that the Salt Lake City Copper Manufacturing Company was the reputed owner and in the possession of certain land and that it erected thereon a smelting and copper refining and manufacturing plant. The plaintiffs brought this action to enforce a mechanic's lien against the property, claiming a certain sum of money due them from the company. Abraham Hanauer, trustee, and Otto Stallman, were made parties defendant. Stallman filed an answer and a cross complaint, wherein he alleged that there was due him from the company, for wages as an employe, the sum of $ 3,775, and claimed a mechanic's lien therefor on the same property, and sought to enforce it as against the plaintiffs and all other defendants in the action. The company failed to answer, and its default was entered, but the defendant Hanauer answered the cross complaint, denying, for want of information and belief, all the material allegations, and, further answering, alleged that on September 24, 1894, the company executed and delivered to him, as trustee, a trust deed on its property, described in the cross complaint, and other property, to secure the payment of certain promissory notes of the company, aggregating the sum of $ 227,200, and claimed that such trust deed was the first lien on the property. Hanauer further alleged that on May 1, 1894, Stallman and the company entered into a written agreement wherein Stallman agreed that all services performed by him on the property prior to April 1, 1894, were performed for one S. M. Green, and that the company was not liable to him for the services performed prior to that date. The cause was tried before a referee; and, in accordance with the findings of fact and conclusions of law reported by him, the court entered judgment in favor of Stallman, and against the company, for the sum of $ 964.65, and ordered so much of the premises to be sold as might be necessary to satisfy the judgment. This judgment excluded the sum of $ 2,700 of the claim of Stallman, that sum having accrued for services prior to April 1, 1894, and the referee having found that such services were rendered to S. M. Green. This appeal is taken from various orders and decrees, one of which is an order overruling the appellant's motion to modify the findings and report of the referee, and another an order denying his motion for a new trial.

The referee, among other things, found that the services performed by Stallman on the premises, prior to April 1 1894, were for Green, and not for the company, and that he was not entitled to judgment against the company, nor to a lien, for the wages earned previous to that date. The appellant insists that the evidence is insufficient to justify or support this finding, and that he was employed by the company, and was entitled to judgment against it, and to a lien for the whole amount of his unpaid wages. Upon an examination of the record, it must be conceded that there is evidence tending to show that the appellant was an employe of the company when his claim accrued, and that it was the owner of the premises in question during the time of his employment, but upon such examination it must likewise be conceded that there is evidence in the record which tends to show that prior to April 1, 1894, Green was the owner of the premises, and about May, 1894, sold the same to the company, and that up to April 1, 1894, the appellant was an employe of Green. Without referring to the evidence in detail, it is clear that there is a substantial conflict therein on the question whether the premises were owned, and the appellant was employed by the company, or by Green, prior to April 1, 1894; and, such being the case, this court will not disturb the findings of fact in question. The rule is well settled in this state that where a case is tried in a court sitting as a court of chancery, and the evidence is conflicting, the findings of fact will be conclusive in the appellate court, unless they are so manifestly against the weight of the evidence as to demonstrate some oversight or mistake. So, likewise, where the...