Freeman v. Withers

• Decision Date: 23 February 1937
• Docket Number: 7616.
• Citation: 65 P.2d 601,104 Mont. 166
• Parties: FREEMAN v. WITHERS.
• Court: Montana Supreme Court

65 P.2d 601

104 Mont. 166

FREEMAN v. WITHERS.

No. 7616.

Supreme Court of Montana

February 23, 1937

Appeal from District Court, Hill County, Twelfth District; C. B Elwell, Judge.

Action by A. Glen Freeman against Perry Withers. From a judgment for plaintiff, defendant appeals.

Affirmed.

D. W Doyle, of Conrad, for appellant.

E. V Ahern, of Havre, and Cedor B. Aronow, of Shelby, for respondent.

ANGSTMAN Justice.

This is an action to recover a claim for wages. The jury found for plaintiff. A motion for new trial was denied and the appeal is from the judgment.

The first question presented is whether the complaint is sufficient. It alleges that plaintiff entered the service of defendant at his instance and request as an oil driller on certain described property at the agreed and reasonable compensation of $10 a day; that plaintiff worked for fifty-four days; and that the total value and agreed compensation earned is the sum of $540, only $35 of which has been paid.

In considering whether the complaint is sufficient, we keep in mind the rule that it is to be construed liberally with a view to substantial justice between the parties, and that whatever is necessarily implied in or is reasonably to be inferred from the allegations is to be taken as directly averred. Doane v. Marquisee, 63 Mont. 166, 206 P. 426; Cook v. Galen, 83 Mont. 334, 272 P. 250; Griffiths v. Thrasher, 95 Mont. 210, 26 P.2d 995. Tested by these rules of interpretation, the complaint was sufficient. It is fairly inferable from the complaint alleging, as it does, that plaintiff entered the service of defendant at his instance and request at the agreed and reasonable compensation of $10 a day, that the agreed compensation was the compensation agreed upon by the parties. The complaint sufficiently shows a contract between the parties, particularly in the absence of a special demurrer. The complaint, alleging what the agreed compensation was, is not defective for also alleging that it was the "reasonable" compensation, for when the agreement fixes the compensation the stipulated compensation becomes the reasonable compensation. Wilcox v. Newman, 58 Mont. 54, 190 P. 138; Schwab v. Peterson, 80 Mont. 214, 260 P. 711. The fact that the jury by their verdict found the reasonable value of the services, rather than the stipulated compensation, is immaterial where the amount of the verdict was in fact the amount fixed by the agreement.

The only other question presented is whether the evidence was sufficient to support the verdict. It is conceded by plaintiff that he was employed by Mr. Ellis. Defendant contends that the evidence was insufficient to show that Ellis was his agent; hence the sufficiency of the evidence turns upon the question of agency.

The evidence of plaintiff, briefly summarized, shows that he went to work as an oil driller at the request of Ellis on October 3, 1930. Plaintiff testified, without objection except the general objection challenging the sufficiency of the complaint, that Ellis "was the foreman in charge of the machine"; he was in charge for Mr. Withers; that he worked for 54 days; that Withers came to the well from time to time; that defendant paid him the sum of $10 by check and that plaintiff received an additional $25, which he thought was paid by Withers; that defendant "fired" him on Thanksgiving Day and then said, "As soon as we get to town he would settle up." Instead of paying when they reached town, plaintiff testified: "He offered me his note and I told him I couldn't eat on a note"; that defendant then said as soon as the bank opened next morning he would get in and settle up the bills. Plaintiff said he called defendant on the telephone at Conrad by long distance asking for the money, and that defendant said "he would be up in a few days and settle up all those bills"; he called him by telephone four different times and received the same assurance each time. Plaintiff said he went to Conrad to interview defendant in the spring of 1931 and offered to make a settlement, and that defendant then assured him that "he would get the rest of the boys together the following morning and see what could be done." He saw defendant next morning, Mr. Jones and Mr. Emrick being present, and that defendant said "he was willing to pay his share if they were willing to pay theirs, and they said that they did not have any share and no responsibility for the deals that he made while he was at Havre; that it was solely up to him to settle up the bills." Plaintiff said that he knew defendant paid other bills arising out of the drilling of that oil and gas well, including grocery bills, board bills, and merchandise furnished to the crew drilling the well. On cross-examination he testified that Withers said he owned the equipment used in drilling the well.

Toney Wick testified that he ran a hotel in Havre during the time the work in question was being done; that Withers guaranteed the hotel bill for the crew working on the oil structure; and that defendant told him, "It is my crew and I will see that it is paid." He also testified that he listened in on the telephone when plaintiff called defendant by long distance and corroborated plaintiff to the effect that defendant promised plaintiff that he would settle up the bills.

Claude Christgau testified that he helped around the well-drilling rig as a handy man; he, too, was hired by Ellis. He was discharged and brought action in the justice court, naming R. A. Jones, E. C. Ellis, and A. L. McDonald as defendants, attached the rig, and was paid in Mr. Lamey's office at Havre. He said: "I think Mr. Withers produced the check; as I recall he gave the check to Mr. Lamey."

John Stoican, Sr., testified that he sold lumber that was used in the drilling operations.

Christgau and Christiansen went to his place near the drilling operations and bought the lumber; it was worth $117.20 new. He was told they would pay the price of new lumber. He also furnished to...