Hood v. Hampton Plains Exploration Co.

• Decision Date: 26 January 1901
• Docket Number: 695.
• Citation: 106 F. 408
• Parties: HOOD v. HAMPTON PLAINS EXPLORATION CO., Limited.
• Court: U.S. District Court — District of Nevada

106 F. 408

HOOD v. HAMPTON PLAINS EXPLORATION CO., Limited.

No. 695.

United States Circuit Court, D. Nevada.

January 26, 1901

Where plaintiff was employed as caretaker for the property of a mining company, a portion of his wages to be retained by the company until it should resume work or sell its property, his action in retaining and applying on such part of his wages a portion of the money collected by him for rents and for certain personal property sold by him, after four years had elapsed and the company had not resumed work nor sold its property, the collections being duly accounted for and reported by him, was not such a breach of trust as justified the company in discharging him and refusing to pay him the wages withheld.

This action was brought by plaintiff to recover from defendant the sum of $2,889.82, alleged to be due him for 1,612 days' services, at $4 per day, as care-taker of defendant's mining property at Pittsburg, Nev., between September 30 1895, and March 2, 1900. The action was originally brought in the state court, and thereafter, upon motion of defendant removed to this court. The answer of the defendant denies that plaintiff rendered any services beyond 1,491 days. 'Denies that for said or any services it promised to pay plaintiff a salary at the rate of $4 per day, or any rate except the sum of $3,586.11. On the contrary, defendant alleges that it has paid to said plaintiff any and all sums of money due him on account of his said alleged services. Denies that there is still due or owing to plaintiff from this defendant for said services, or any services, the sum of $2,889.82, or any sum of money. ' For further answer, and by way of affirmative defense, defendant alleges that 'On or about the 30th day of September, 1895, defendant employed this plaintiff as care-taker of its property, real and personal. * * * That plaintiff entered upon his duties as care-taker for this defendant on the 1st day of October, 1895, and continued and remained in the employ of defendant up to and including November 4, 1899. * * * That it agreed to pay to said plaintiff for his said services the sum and price of four dollars per day, payable as follows: One-half of said sum, to wit, two dollars per day, payable at the end of each consecutive fourth week of service, and the remaining one-half, to wit, two dollars per day, payable at such a time as this defendant might resume operations of its business or dispose of its property. * * * That from the . . . day of November, 1897, up to and including the 30th day of October, 1899, this plaintiff has received from the sales of merchandise and supplies belonging to this defendant, and from rents of property belonging to defendant, the sum of $605.05, which said sum of money plaintiff has converted to his own use, without the consent of this defendant, and plaintiff is now indebted to this defendant in the full sum of $605.05, no part of which sum has been paid. * * * That at the time of the employment of this plaintiff, to wit, September 30, 1895, it was ever since then, and now is, the owner of, and in the possession of, those certain mines, mining claims, and mining property and appurtenances situate at Pittsburg, Lander county, Nevada. That ever since the employment of plaintiff by this defendant said mines * * * have remained and now are idle, and defendant at no time during the employment of said plaintiff either resumed operation of its business or disposed of its property, '-- and prays judgment against the plaintiff for the sum of $605.05 and costs.

Plaintiff's employment commenced October 1, 1895, upon an oral agreement between himself and Mr. Hunter, agent of the defendant. On January 15, 1896, the plaintiff, in a letter addressed to R H. M. Hill, secretary of defendant, said: 'When I came here, a verbal agreement was made between Mr. Hunter, as your agent, and myself. According to this agreement, I was to receive, as a recompense for faithful and conscientious services rendered the company, a salary of $4 per day, one half payable at the end of each consecutive fourth week of service, and the remaining half payable at such a time as the company might resume operations or dispose of the property. If agreeable to you, I would be pleased to receive a statement from yourself confirming this agreement,' To this letter the plaintiff received a reply dated London February 15, 1896, wherein Hill said: 'The arrangement as to your salary is as stated in your letter of the 15th ultimo. ' It is admitted that plaintiff received payments, as per agreement, at the rate of two dollars per day, up to September 25, 1899, and that he has received no payment whatever since that date. On September 30, 1899, the plaintiff, in a letter sent to Mr. Hill, said: 'To-day completes my fourth (year) of service for the Hampton Plains Exploration Co., Limited. I hereby announce my resignation from said company's employment, to take place not more than one year after date. ' On October 3, 1899, Hill, in a letter to plaintiff, said: 'I have submitted your letters dated August 3d and September 12th and 13th to my directors, who are much surprised to find that you have been selling goods belonging to the company, and collecting moneys for these goods and rent, since November, 1897, and appropriating the same to your own personal use, and giving me no information whatever that these had been effected, and that the moneys had been received by you; this being a complete breach of the instructions contained in my letter to you of September 30, 1895. The salary arranged to be paid to you by my letter of that date has been regularly paid. Under the circumstances, my directors are compelled to at once cancel your employment, and have instructed Mr. J. B. Truman, of San Francisco, to proceed to Pittsburg, and to take charge of the property. I must request you, therefore, on the arrival of Mr. Truman, to hand over to him possession of everything belonging to the company. ' On November 4, 1899, the plaintiff wrote to Hill as follows: 'I have to acknowledge the arrival here, on the 28th ulto., of Mr. J. L. Grimes. He came to take my place here. I am very sorry that I was compelled to refuse to deliver possession of the company's property over to him. As in your letter of instructions to me, announcing the appointment of Mr. Truman as your agent, you wrote of my salary being regularly paid, it seemed to me as the only consistent course left for me to follow was to remain here until a full investigation as to the terms of the contract of my employment, as made between Mr. Hunter, as your agent, and myself, could be made. * * * Even Mr. Grimes said that he and Mr. Truman both thought, from the correspondence forwarded to Mr. Truman by the company, that my full wages had been paid. If it had not been for this misunderstanding. I would gladly have turned over possession of the company's property to Mr. Grimes, although I am not sure that Mr. Truman had authority to depute his power as agent to another. As the matter stands at present, I think best to maintain possession until a complete understanding can be reached. ' On November 17, 1899, Hill wrote plaintiff, among other things, as follows: 'I am in receipt of your letter of the 4th inst. Mr. Truman's letter to you of the 3d inst. clearly states the position of your engagement with this company. You were to be paid $2.00 per day, and you have been duly paid this. To the astonishment of my directors, it appears that you have been collecting moneys for goods and rent on behalf of the company since Nov., 1897, and appropriating the same, giving no information that these moneys had been received by you. We quite admit you were to be paid an additional $2.00 per day in the event of company resuming operations or disposing of the property. Neither of these events having happened, you are not entitled to receive more than $2.00 per day, and you are therefore a debtor to the company for $605.05, received and retained by you since Nov., 1897. My directors consider your receiving and retaining these amounts is a serious breach of trust, and they must request that you will at once hand over possession of the property, together with the $605.05, which you have illegally and unwarrantably appropriated, to Mr. Truman or his nominee. ' On December 11, 1899, the plaintiff, in answer to this letter, after repeating the terms of the agreement, said: 'When I entered the employ of your company, I supposed that the mine would be put and kept in a salable condition, but, contrary to my advice, the company have absolutely refused to do work of any kind in said mines. Although several parties have been here to inspect the mine during my stay here, their visits were productive of no results, because the mines had been kept in no condition for inspection. For a long time I have been convinced that no sale of the property could be made until some work was done in the mines, and it commenced to look as though the company were purposely reducing their property to an unsalable state. Of all moneys received from the rents of the company's buildings, and from merchandise and supplies sold, I have kept a true, exact, and faithful account. I have kept you fully informed as to the lengths of time for which I have been able to rent each and every one of said buildings, and of the amounts received for such monthly rentals. I was persuaded to retain and apply part of these amounts to my salary account...