Hammitt v. Virginia Mining Co.

• Decision Date: 12 May 1919
• Parties: BENJAMIN C. HAMMITT, Respondent, v. VIRGINIA MINING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

181 P. 336

32 Idaho 245

BENJAMIN C. HAMMITT, Respondent, v. VIRGINIA MINING COMPANY, a Corporation, Appellant

Supreme Court of Idaho

May 12, 1919

PLEADING-COMPLAINT IN ACTION TO QUIET TITLE-ALLEGATION OF OWNERSHIP-PRINCIPAL AND AGENT-APPARENT AUTHORITY-BENEFITS, RETENTION OF-ESTOPPEL-EVIDENCE.

1. In an action to quiet title, an allegation in ordinary and concise terms of the ultimate fact that the plaintiff is the owner of the property is sufficient, without setting out probative facts which go to establish that ultimate fact, and an allegation that the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer or to allegation and proof of the estate or interest which he claims.

2. When a principal clothes an agent with apparent authority, his acts thereunder govern mutual rights and liabilities as between such principal and third persons, and the principal is estopped to deny such authority.

3. Where one, without collusion or fraud, deals with a corporation through an officer who is in the active management of its business, if the act done by said officer is one which the corporation might do, it will be estopped from relying upon any lack of authority in said officer as a defense against the rights of the party so dealing with the corporation.

4. A principal who seeks to retain a benefit derived from the fraudulent or unauthorized act of his agent is chargeable with the instrumentality thus employed, and will not be permitted to disclaim the responsibility flowing therefrom.

5. When a plaintiff has properly plead his case in his complaint, he may take advantage of any affirmative matter which would tend to avoid any affirmative defense plead in defendant's answer, as fully as if he were permitted to specifically plead his matter defensive thereto by way of replication.

6. In an action to quiet title, wherein the defendant has affirmatively plead an interest in the property, derived from an alleged option, a subsequent option given between the parties litigant, for the same property, is admissible under the issues raised by the pleadings to rebut defendant's contention that payments actually made under the second option should have been credited on the option plead in the answer, and as tending to show that all of the parties had treated the option plead in the answer as forfeited.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.

Action to quiet title. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

S. S Gundlach and Joseph F. Morton, for Appellant.

It was necessary for Hammitt to set forth and allege the facts constituting his ownership in the property. Without such fact being alleged, a mere conclusion that plaintiff Hammitt is the owner fails to constitute a cause of action and failed to advise this appellant of plaintiff's interest. (Bingham County v. Woodin, 6 Idaho 284, 55 P. 662; Holton v. Sandpoint Lumber Co., 7 Idaho 573, 64 P 889; Byington v. Commissioners of Saline Co., 37 Kan. 654, 16 P. 105; Kelly v. Perrault, 5 Idaho 221 48 P. 45; Ollis v. Orr, 6 Idaho 474, 56 P. 162; Lowman v. West, 8 Wash. 355, 36 P. 258.)

The supreme court of Idaho has laid down the rule that the plaintiff must state the facts in his complaint, on which he intends to rely, to determine his title. (Fry v. Summers, 4 Idaho 424, 39 P. 1118.)

James A. Wayne and H. E. Worstell, for Respondent.

In an action to quiet title it is no longer necessary for a plaintiff to set out specifically the character of his own title, or of the alleged title of the defendants; it is always sufficient simply to allege that plaintiff is the owner and in possession of the property, describing it, and that the defendants are unlawfully asserting a claim thereto adverse to him. (17 Ency. of Pl. & Pr. 328; Ely v. New Mexico & A. R. Co., 129 U.S. 291, 9 S.Ct. 293, 32 L.Ed. 688, see, also, Rose's U. S. Notes; Union Mill & M. Co. v. Warren, 82 F. 519; Stockton v. Oregon Short Line R. Co., 170 F. 627; New Jersey & N.C. Land & L. Co. v. Gardner etc. Lumber Co., 178 F. 772, 102 C. C. A. 220; Rose v. Richmond Min. Co., 17 Nev. 25, 27 P. 1105; Cooper v. Birch, 137 Cal. 472, 70 P. 291; Payne etc. v. Treadwell, 16 Cal. 220; Rough v. Simmons, 65 Cal. 227, 3 P. 804; Statham v. Dusy (Cal.), 11 P. 606; Heeser v. Miller, 77 Cal. 193, 19 P. 375; Schlageter v. Gude, 30 Colo. 310, 70 P. 428; Parker v. Conrad, 74 Kan. 111, 85 P. 810; Davis v. Crump, 162 Cal. 513, 123 P. 294.)

BUDGE, J. Morgan, C. J., concurs. Rice, J., did not sit with the court nor participate in the opinion in this case.

OPINION

BUDGE, J.

This is an action to quiet title to an undivided one-sixth interest in the Virginia Lode Mining Claim in Shoshone county. The case was tried to the court without a jury. The court found the facts in favor of respondent, and entered judgment quieting title in him as prayed in the complaint. This appeal is from the judgment.

The court overruled appellant's general demurrer to the complaint. This ruling is assigned as error. The complaint alleges in substance that respondent is the owner and in possession of the property, describing it, an unpatented mining claim; that appellant asserts a claim and interest or interests therein adverse to him; that such claim is without any right whatsoever, and that the appellant has no estate, right, title or interest in the premises, and prays that he be required to set forth the nature of his claim, that all adverse claims be determined by a decree of the court, and that it be decreed that respondent is the owner of the premises and that appellant has no estate or interest therein, and that he be forever debarred from asserting any claim therein adverse to respondent.

That the court did not err in overruling the demurrer is apparent from the following rule, stated by the supreme court of the United States:

"An allegation, in ordinary and concise terms, of the ultimate fact, that the plaintiff is the owner in fee, is sufficient, without setting out matters of evidence, or what have been sometimes called probative facts, which go to establish that ultimate fact; and an allegation that the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer, or to allegation and proof of the estate or interest which he claims, the nature of which must be known to him, and may not be known to the plaintiff." (Ely v. New Mexico & Arizona R. R. Co., 129 U.S. 291, 9 S.Ct. 293, 32 L.Ed. 688, see Rose's U.S. Notes.)

To the same effect see Pettengill v. Blackman, 30 Idaho 241, 164 P. 358; Fry v. Summers, 4 Idaho 424, 39 P. 1118; 17 Ency. Pl. & Pr. 328; 32 Cyc. 1351; Union Mill & Mining Co. v. Warren, 82 F. 519; Stockton v. Oregon Short Line R. Co., 170 F. 627; New Jersey & N.C. Land & Lumber Co. v. Gardner-Lacy Lumber Co., 178 F. 772, 102 C.C.A. 220; Payne & Dewey v. Treadwell, 16 Cal. 220; Rough v. Simmons, 65 Cal. 227, 3 P. 804; Statham v. Dusy (Cal.), 11 P. 606; Heeser v. Miller, 77 Cal. 192, 19 P. 375; Davis v. Crump, 162 Cal. 513, 123 P. 294; Schlageter v. Gude, 30 Colo. 310, 70 P. 428; Parker v. Conrad, 74 Kan. 111, 85 P. 810.

The second, third and fourth assignments of error attack the findings of fact. The record shows that the findings are clearly supported by the evidence, from which it appears that on May 14, 1913, respondent gave Patrick Burke an option on the property in question, which he later assigned to the Virginia Mining Company, appellant. The terms of this option are not material, so far as the disposition of this case on appeal is concerned, for the reason that both the company and Burke failed to comply therewith; it was forfeited, and a new option was given direct to the Virginia Mining Company on January 14, 1916, for a total consideration of $ 6,500, $ 500 to be paid upon...