Findlay v. Hildenbrand

• Decision Date: 11 December 1909
• Citation: 105 P. 790,17 Idaho 403
• Parties: JOHN FINDLAY, Respondent, v. CHRISTIAN HILDENBRAND, Appellant
• Court: Idaho Supreme Court

105 P. 790

17 Idaho 403

JOHN FINDLAY, Respondent, v. CHRISTIAN HILDENBRAND, Appellant

Supreme Court of Idaho

December 11, 1909

AGENCY-CONTRACT-RATIFICATION.

1. Held, that the evidence in this case does not support the findings and judgment of the trial court.

2. A ratification cannot take place without full knowledge of all the material facts, and where a person assumes to act as agent in making a contract, and the person with whom such contract is made proceeds to a performance of the same under protest from the principal, and during such performance is advised and notified by the principal that such person is not in his employ, and that no one had authority to employ him and that he does not desire or need his services, the mere fact that after the cessation of such labor the principal pays to such person an amount which he deems such service is worth will not alone amount to a ratification of the contract made by the person assuming to act as such agent, and will not support an action based upon such contract, upon the ground that the contract was ratified.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

An action to recover upon a contract of employment to perform labor and for the foreclosure of a laborer's lien. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed. Costs awarded to the appellant.

Lot L Feltham, for Appellant.

The fact of Findlay's labor upon the Mayflower mine, or group of mines, is supported only by his own testimony. Neither Dennison nor French testified to having seen the work done by Findlay on the Mayflower mine, and so they, were not testifying to the value of the work from actual observation but from hearsay, and that hearsay came to them from Findlay alone. If agency can be proved by such statements, then anyone can assume to be the agent of another, or induce some one to appoint him as such agent, and then proceed to perform labor upon some property belonging to this other, and after rendering this pretended service, file his lien and foreclose it and secure through the court an enforcement of the same regardless of whether the property owner wants the service performed or not. (Ferris v. Baker, 127 Cal. 520 59 P. 937; Santa Cruz Butchers' Union v. I. X. L. Lime Co. (Cal.), 46 P. 382; Gregory v. Loose, 19 Wash. 599, 54 P. 33; Murphy v. Gumaer, 12 Colo. App. 472, 55 P. 951; Moore v. Skyles, 33 Mont. 135, 114 Am. St. 801, 82 P. 799, 3 L. R. A., N. S., 136; St. Louis & S. F. Ry. Co. v. Brown, 3 Kan. App. 260, 45 P. 118.)

Wm. B. Davidson, for Respondent.

Ratification is the express or implied adoption of the acts of another by one for whom the other assumes to be acting, but without authority; and this results as effectively to establish the duties, rights and liabilities of an agency as if the acts ratified had been fully authorized in the beginning. (1 Am. & Eng. Ency. of Law, 2d ed., 1181.)

"A ratification of the agent's acts may be tacit or express; and the principal's acts will be liberally construed in favor of a ratification." (Flower v. Jones, 7 Mart. (N. S.) 140; Codwise v. Hacker, 1 Caines (N. Y.), 526; Fraser v. San Francisco Bridge Co., 103 Cal. 79, 36 P. 1037; Johnston v. Berry, 3 Ill.App. 256.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

The respondent brought this action to recover the sum of $ 122, balance claimed to be due for labor performed on the Mayflower mining claim and for the foreclosure of a lien. In the complaint the plaintiff alleged that the defendant was at all times mentioned in the complaint the owner of such mining claim; that on Jan. 9, 1907, he entered into a contract with the appellant by which he was employed to perform such labor, and that the appellant agreed to pay him for such labor the sum of four dollars per day to be paid in cash from time to time as needed during the progress of the work; and that the balance remaining due upon completion of said work was to be paid at such time; that under said contract between Jan. 9, 1907, and May 11, 1907, he performed eighty-four days of labor and has fully performed his part of said contract, the last of said labor being performed on May 10, 1907; that the total amount of said labor amounted to $ 336, and that there remains due thereon the sum of $ 122. Then follow the allegations with reference to the filing of the lien and the payment of the sum of $ 5 for the preparing of such lien and $ 1.45 for recording the same.

The defendant in his answer denies the making of the contract alleged in the complaint, and denies that the plaintiff was employed by the defendant to perform any labor on the Mayflower mine or any other mine or in any capacity whatever; denies that he ever agreed to pay the plaintiff, for any work or services, the sum of four dollars per day or any other sum; and denies that the plaintiff performed any labor for the defendant between Jan. 9 and May 11, 1907, at his request or at all. The defendant admits that he paid plaintiff the sum of $ 214, and denies that the same was due plaintiff, or that plaintiff was entitled to the same or that the plaintiff had earned the same; denies that the plaintiff was entitled to a lien.

Upon these issues the court found that the defendant was the owner of the property described in the complaint at the time stated therein; that the plaintiff performed work thereon as a miner between Jan. 9, 1907, and May 10, 1907, to the number of 81 1/2 days, and that the defendant agreed to pay for such labor the sum of four dollars per day, aggregating the sum of $ 326; that there was a balance due the plaintiff for such labor in the sum of $ 112 and interest amounting to $ 6.80. The court then finds the preparation and filing of the lien and the expenditure in the sum of $ 1.45 for filing the same and that $ 50 is a reasonable attorney's fee. A decree was entered accordingly. A motion for a new trial was made and overruled and this appeal is from the order overruling the motion for a new trial and from the judgment.

While there are a number of specifications of error assigned in relation to the admission of evidence, yet they are all involved in the question whether the evidence supports the findings of the trial court. The appellant contends that the evidence does not support the findings of the trial court.

It will be observed from the complaint that the plaintiff sought to recover upon a contract made between the plaintiff and the defendant. The main contention made by the appellant upon this appeal is that the evidence does not show that there was ever any contract made between the plaintiff and the defendant, or that the defendant in any way or manner employed the plaintiff to perform any work or labor upon the Mayflower mine.

The plaintiff when upon the witness-stand was asked, "State whether you had any agreement with Mr. Hildenbrand or any other person represented as his agent for work on this property." In answer to that he said he made an agreement with the party who was Mr. Hildenbrand's agent, Oscar Olsen; that Olsen was assistant to Howard Dennison, who was superintendent of the Iron Springs Company; and that this occurred on the last days of 1906 or possibly in 1907, in the new year; that Olsen asked him to go into the tunnel on the Mayflower group and work wherever he thought it to the most advantage; that four dollars was agreed upon as the price to be paid for such work; that he commenced work on Jan. 15, 1907, and quit on May 10, 1907

C. H. Dennison testified that in January, 1907, he was superintendent of the Iron Springs Mining Company; that Oscar Olsen was assistant during 1906 and 1907. "I notified Olsen to have someone do the assessment work on the Hildenbrand property. . . . It was in December, 1906. I do not mean to be understood as saying that when I gave my orders to Mr. Olsen to have some work done on the Hildenbrand property that I was acting in the capacity of the superintendent of the Iron Springs Mining Co. I do not mean to state here and have this court construe that when I ordered this work done that I did it on behalf of the Iron Springs Company. . . . As a matter of fact, the Iron Springs Mining Company never did have any interest in the Hildenbrand property. It never did authorize me as superintendent to have any work done on it as superintendent."

This was all the evidence given at the trial with reference to the plaintiff's employment by the defendant at and prior to the time the plaintiff commenced labor on the Mayflower mine, to recover which this action was brought. Hildenbrand, the defendant, was a resident of Iowa and had no personal conversation with the plaintiff with reference to this labor. It will thus be seen from this evidence that the plaintiff was not employed by the defendant to do this work or by anyone who had any authority to employ the plaintiff. Neither Olsen nor Dennison, as it appears from this evidence, had any authority to put the plaintiff to work upon the Mayflower group of mines at the time plaintiff claims to have commenced labor thereon. On Feb. 17, 1907, and a little more than a month after plaintiff testifies he commenced working on the Mayflower group of mines, he wrote a letter to the defendant in which he states:

"You will perhaps be a little surprised to get a letter from me but as they have put me to work on your property, with instructions to try and find the ledge in place, and to do the work where I thought best. Now, it seems to me that the best place to work would be to sink on that wall, and get the course of it, and then when the snow gets off, try and trace it down the hill a ways, perhaps down about where the trial goes...