Linn v. Alameda Min. & Mill. Co.

Decision Date16 October 1909
Citation17 Idaho 45,104 P. 668
PartiesOLE H. LINN, Respondent, v. ALAMEDA MINING AND MILLING CO., Appellant
CourtIdaho Supreme Court

INSUFFICIENCY OF EVIDENCE-AGENCY-RATIFICATION.

1. Evidence in this case examined and held insufficient to support the verdict and judgment.

2. Where L. was employed by M. to do certain work and perform certain services and the labor was performed for M. as principal and the credit was extended to M., no question of agency arises, and the law of ratification is not involved in an action against a third party for the collection of such claim for services.

3. Ratification signifies the adoption or acceptance by the principal of that which was done for and in the name of the principal. The agent or assumed or ostensible agent must have acted as agent and not as principal.

4. The payment by a mining company of certain claims for labor performed on or in connection with its property under employment of a third person does not amount to an adoption or ratification or recognition of the claims of other laborers for services performed for such third person under similar circumstances and at the same time as the claim paid by the company, where the services had all been performed and the labor done prior to such payment.

(Syllabus by the court.)

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

Action by plaintiff for recovery of a debt. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed. Costs awarded in favor of appellant.

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

In order that an act may be capable of ratification, it must have been performed by one who purports to act as the agent of another. (31 Cyc. 1251.) Even had the Alameda company desired to ratify the work of Mayo-Sachs & Co., it could not have done so, under the law, when Mayo had never assumed to act for it. (McDonald v. McCoy, 121 Cal. 55, 53 P 421; Goetz v. Goldbaum (Cal.), 37 P. 646; Ellison v. Jackson Water Co., 12 Cal. 542; Mattocks v. Young, 66 Me. 459; Ilfeld v Ziegler, 40 Colo. 401, 91 P. 825; Johnson v. Johnson, 31 F. 700.)

"If a party prefers to deal with the agent personally, on his credit, he will not be allowed afterward to charge the principal." (Ford v. Williams, 21 How. 287, 16 L. ed. 36.)

Gray &amp Knight, and Wm. K. Shissler, for Respondent.

Even if Mayo had not been authorized to make the contract, the company held him out as having such authority and subsequently ratified the contract, and is estopped from denying his authority. (Blake v. Domestic Mfg. Co. (N. J. Eq.), 38 A. 241.) In this case the company has acquiesced, accepted and confirmed all of the acts of Mr. Mayo in securing the privilege of opening up the Alameda through the Success and has actually paid for the work of opening it up, except that it has not paid the respondent. (German Nat. Bank v. First Nat. Bank, 59 Neb. 7, 80 N.W. 48.)

The presumption of ratification will arise on very slight evidence where the act is plainly for the benefit of the principal. (10 Cyc. 1080, and cases cited; Clement v. Young-McShea Amusement Co., 69 N.J. Eq. 347, 60 A. 419; Pittsburgh etc. Ry. Co. v. Keokuk Bridge Co., 131 U.S. 371, 9 S.Ct. 770, 33 L. ed. 157.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This action was instituted to collect the sum of $ 1,050 for labor performed by the plaintiff as foreman in the performance of certain work on the defendant's property. Judgment was entered in favor of the plaintiff and defendant moved for a new trial and its motion was denied. Thereupon an appeal was taken from the judgment and order denying a new trial.

The contention made on this appeal is that the court erred in not granting a nonsuit, and that there is no evidence whatever on which to rest the verdict and judgment. There is no substantial conflict in the evidence; what conflict exists is mere detail and does not go to the essential facts.

It appears that in the month of November, 1906, one William L. James owned the majority of the stock of the appellant corporation, and at that time gave Mayo-Sachs & Company of Butte, Montana, an option to purchase his stock, running until some time the following summer. It also appears that at the same time the Alameda company gave Mayo-Sachs & Company permission to enter upon its property and to prospect and develop the same and do such things as they saw fit in order to determine the value of the property, and consequently whether or not they would exercise their option to purchase the James stock. The nature of this latter agreement or permission is very vague, indefinite and uncertain; in fact there is nothing in the record that discloses what officers of the appellant company gave this permission and authority to Mayo-Sachs & Company to enter upon the Alameda property and examine and prospect the same. There is no question, however, but that the authority did exist. The option given by James covered his entire holdings in the appellant company and he was at that time president of the company. The claims belonging to the Alameda company adjoined the property of the Success Mining Company.

After securing this option Mayo of the Mayo-Sachs Company entered into an agreement with Mr. H. F. Samuels, who represented the Success Mining Company, whereby he secured the privilege of working and prospecting the Alameda property through the Success Tunnel No. 2. He accordingly employed the respondent Linn to take charge of the work as foreman and superintendent and to employ men and carry on the work of driving the Success Tunnel into the Alameda property and prospecting the latter property. Respondent accordingly carried on this work employed men and discharged them, made his reports from time to time to Mayo-Sachs & Company and received checks from them for labor performed until his last claim of $ 1,050, which was not paid by Mayo-Sachs & Company. In the meanwhile Mayo-Sachs & Company had made such examination of the Alameda property as to satisfy them of its values and, in their opinion, to justify them in taking up their option on the James stock; and they accordingly made final payment for the same on June 18, 1907, and thereupon they reorganized the directorate of the Alameda Company, and elected one of their firm president and others, either of their firm or of their friends, to constitute a majority of the board of directors. Up to this time Mayo-Sachs & Company had had no connection with the Alameda company, held no stock in the company, and were in no way identified with the company except by reason of the option they held on the James stock. Subsequent...

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