Integrity Mining And Milling Co. v. Moore

• Decision Date: 06 April 1908
• Citation: 109 S.W. 1057,130 Mo.App. 627
• Parties: INTEGRITY MINING AND MILLING COMPANY, Respondent, v. R. S. MOORE et al., Appellants
• Court: Kansas Court of Appeals

109 S.W. 1057

130 Mo.App. 627

INTEGRITY MINING AND MILLING COMPANY, Respondent, v. R. S. MOORE et al., Appellants

Court of Appeals of Missouri, Kansas City

April 6, 1908

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Judgment affirmed.

H. W Currey and Pritchett & Pritchett for appellants.

(1) The action is to enjoin a trespass on real property, in violation of plaintiff's alleged right to mine the same. The petition fails to state that plaintiff, or his assignor was or ever had been in possession of the property, and for that reason fails to state a cause of action. Powell v Canady, 95 Mo.App. 713, Gildersleeve v Overstolz, 97 Mo.App. 303. (2) The right to mine this land was in dispute. Defendants were in possession, mining the same, under a contract in writing executed by the plaintiff, which gave them the right to mine. Had plaintiff brought a suit to set aside this contract on the grounds that its president had no power to bind it by same, a temporary writ enjoining defendants pending such suit might have rightfully been issued. But the fact that plaintiff's right was in dispute or was uncertain or not determined is sufficient to reverse this case. Sill v. Goodyear, 80 Mo.App. 128; Heman v. Wade, 74 Mo.App. 342; Smith v. Jameson, 91 Mo. 13; Schelkamp v. Schroeder, 45 Mo. 505. (3) Whether the contract read in evidence signed by plaintiff was executed by an officer having no authority to bind it cannot, properly be determined in this case. The plaintiff had the right to show that the agreement was a mere sham gotten up to justify defendant's acts, but could go no further. It admits the execution of the contracts and Moon's good faith. This alone should reverse the case. Houch v. Patty, 100 Mo.App. 310. (4) There is no testimony showing that the defendants had any notice or knowledge of the minutes of the plaintiff company or of its by-laws. Neither the minutes nor the by-laws were, therefore, admissible in evidence against the defendants. Cape, etc., Co. v. Kimmel, 58 Mo. 63; Stinde v. Scharff, 36 Mo.App. 15; Sparks v. The Dispatch, etc., Co., 104 Mo. 534; Walker v. Wilmington (S. C.), 1 S.E. 369; McCreery v. Garvan, 17 S.E. (S. C.) 828, 829. (5) The provisions of the order appointing Myers general manager, subject to the supervision of the board of directors, constitute no limitation upon his authority. McCreery v. Garvan, 17 S.E. (S. C.) 828, 829. (6) The corporation had power to enter into the contract giving defendants the right to mine the ground. It sent its president here to act for it in the premises. Defendants had no knowledge of any limitations on his authority. He assumed to have the authority to make the contract and it was within his apparent powers. Under such circumstances, the contract binds the plaintiff corporation. Webster v. Wray, 17 Neb. 579; Mechem on Agency, sec. 283, p. 186; Butler v. Maples, 9 Wall (U.S.), 766, 773; Edwards v. Insurance Co., 100 Mo.App. 711. (7) Plaintiff sent Myers to defendant to adjust the matter of the contract to mine, which defendant claimed; Myers did adjust the matter, gave defendant authority to mine, and plaintiff is bound by all Myers did in the premises. Experiment Co. v. Harris, 21 N.E. (Ind.), 340, 341; Mo. etc. Co. v. German, 84 Tex. 143, 19 S.W. 461; Nowack v. Railroad, 166 N.Y. 433, 60 N.E. 432; Bank v. Railroad, 137 N.Y. 231.

W. R. Robertson for respondent.

(1) The attempted defense of res adjudicata is not well pleaded, because it is the duty of the pleader to allege the facts on which the adjudication was had and not his conclusions. Pond v. Huling, 101 S.W. 115. (2) Conceding for the purpose of the argument that witness Myers had authority to sublet this ground, yet it is clear that the right sought to be obtained would have to be given by a writing signed and delivered. See cases cited under 3 and Boone v. Stover, 66 Mo. 432; Fuhr v. Dean, 26 Mo. 120; Hammerslough v. Cheatam, 84 Mo. 19. (3) If the contention of defendants is that the president of plaintiff company as an incident to the working of the mines on the ground in controversy, had the further implied power to sublet any part of it then he would of necessity have the authority to sublet all of it or to sell all of it, but this is not the law. Hyde v. Larkin, 35 Mo.App. 370; Ferguson v. Venice Trans. Co., 79 Mo.App. 352; Hall v. Bank, 145 Mo. 427; State v. Perkins, 90 Mo.App. 609; Jones v. Williams, 139 Mo. 24.

OPINION

BROADDUS, P. J.

--This is a suit by injunction. The agreed facts are as follows: A corporation known as the Big Stick Mining Company held an unrecorded mining lease on a certain tract of land in Jasper county. On the 12th day of November, 1906, this company in writing gave to the Federal Mining Company the right to prospect and mine for lead and zinc under or on the lands in said lease for and during the time from that date until the 17th day of September, 1916, subject to compliance by the latter to certain provisions and requirements, twenty-one in number, one of which provides that no part of said leased premises shall be sublet or any interest therein assigned without the written consent of the first named party. Number 4 provides that: "No interest in said lots or the ores therein shall be acquired, held or claimed, or in any wise affected by virtue of this contract or by virtue of mining or working therein under or by virtue hereof, . . . ." Numbers 7, 8, and 9 provide that the Big Stick Company will pay to the Federal Mining Company "as full compensation for all labor performed in prospecting and mining on said lots or tracts of land as follows: For lead ore properly cleaned, the cash market price thereof, less seventeen and one-half per centum. For zinc ore properly cleaned the cash market value thereof, less, seventeen and one-half per centum."

The Federal Mining Company having first obtained the written consent of the Big Stick Mining Company, on the 21st of December, 1906, assigned to the plaintiff all its right, title and interest in said lease. On the 23d day of March, 1907, J. E. Myers as president of the plaintiff issued two permits for mining on said lease. One to S. S. Moon to mine on lots 29 and 30, and the other to Sam Moon and John H. Ragland also to mine on said lots. The permit restricted the right of said parties to mine the upper run of ore which had been located at from 90 to 110 feet below the surface of the earth.

The petition after alleging the facts stated recites: "That on or about March 23, 1907, the defendants R. S. Moon and Walter Ragland commenced negotiations with one J. E. Myers, the then president of plaintiff corporation for a permit to work what they designated as the upper run of ore in said land at between the depth of 90 and 110 feet . . . and proposing to be governed by the terms and conditions named in said contract with the said landowner of lessee and to pay a royalty on all ores of twenty-five per cent; that though said negotiation did not terminate in any permit being given or granted to the said defendants or either of them, or in their acquiring any right to prospect for or mine ores in said land or in any way to interfere with the plaintiff's rights thereon," the defendants have gone upon the land, "and have begun sinking or threatening to sink a shaft thereon for the avowed purpose of mining therefrom" the ores. The other defendants named are alleged to be aiding and abetting those already named in their purposes.

The defendants in their answer set up as a defense the permit mentioned given by J. C. Myers, the president of the plaintiff; and further they went upon the premises with the consent, knowledge, advise, and permission of the plaintiff and the Big Stick Mining Company. Further the answer alleges a former adjudication of the matters in issue in a proceeding before a justice of the peace but as plaintiff dismissed the case after appeal to the circuit court, said defense is not available. The judgment was for the plaintiff from which defendant a...