McCornick v. Queen of Sheba Gold Min. & Mill. Co.

• Decision Date: 13 December 1900
• Citation: 23 Utah 71,63 P. 820
• Parties: W. S. McCORNICK, Doing Business as McCORNICK & COMPANY, Appellants, v. QUEEN OF SHEBA GOLD MINING AND MILLING COMPANY, Respondent
• Court: Utah Supreme Court

63 P. 820

23 Utah 71

W. S. McCORNICK, Doing Business as McCORNICK & COMPANY, Appellants, v. QUEEN OF SHEBA GOLD MINING AND MILLING COMPANY, Respondent

Supreme Court of Utah

December 13, 1900

Appeal from the Third District Court, Salt Lake County.--Hon. A. N Cherry, Judge.

Action by plaintiff to recover of defendant a certain amount alleged to be due him on account of an overdraft of defendant at his bank. From a judgment for defendant plaintiff appealed.

AFFIRMED.

Messrs Pierce, Critchlow & Barrette for appellant.

The appointment of an agent and his authority may be proved by the agent's testimony.

The testimony of an agent on the question of his agency, is as competent as that of any other witness. R. S. Utah, secs 3412,3413.

The court admitted in evidence a large number of letters and statements, which Geo. D. Haven sent to the English company and associates. Mr. McCornick knew absolutely nothing of these exhibits. It is not claimed that he had any knowledge of them. The contents of these letters was very prejudicial to the plaintiff, and had a tendency to draw the mind of the jury from the issues in the case. These letters were all written long after the account was opened. They are immaterial and hearsay under the rule laid down in the case of Jensen v. McCornick, 58 P. 834.

By an examination of the bond as introduced in evidence it will be seen that it was an agreement whereby the witness, George D. Haven, binds himself to deliver to M. K. Rodgers a deed to all the defendant company's property, upon the payment of certain sums therein mentioned. We think this exhibit was absolutely immaterial and hearsay, so far as McCornick was concerned. We can not possibly see what bearing it has upon the issues in this case. It was certainly confusing to the jury, and tended to draw their minds from the vital issues in the case. Jensen v. McCornick, 58 P. 834.

Messrs. Marshall, Royle & Hempstead for respondent.

The reports were admissible on cross-examination, because they were statements in writing by the witness at another time contradicting his testimony on direct examination. See Greenleaf on Evidence (15 Ed.), sec. 462.

The authorities hold without dissent that a depositary, such as McCornick was, is the agent of both parties, to the agreement, and when he assumes the trust he is bound to ascertain the extent of his own agency. See Shirley v. Ayres, 14 Ohio 308; Cannon v. Handley, 72 Cal. 140.

In conclusion, we rely upon the salutary legal principle repeatedly enunciated by this court, that the Supreme Court will not set aside a verdict when the evidence is conflicting, unless such verdict be so manifestly against the weight of the evidence as to show that the jury acted from passion or prejudice. Mader v. Taylor, Romney & Armstrong, 15 Utah 161.

BARTCH, C. J. Miner and Baskin, JJ., concur.

OPINION

BARTCH, C. J.

The plaintiff, who is a banker, brought this action to recover $ 2,673.48 and interest, alleged to be due him from the defendant because of an overdraft at his bank. At the trial a verdict was returned and judgment entered against him. This appeal is from the judgment.

It appears from the evidence that the defendant was a mining corporation, and owned a group of mining claims in western Utah; that one George D. Haven, a mining man of experience and means, in the early part of 1896, went to England for the purpose of interesting English capitalists in mining property situate in this State; that before his departure, Haven, who held a few shares of stock and was a director in the defendant company, was authorized, by special power of attorney, to sell the corporate property; that he did not dispose of the property, under these powers, but, while in England, succeeded in interesting some friends in the enterprise. These Englishmen and Haven organized, it appears, the Clifton Utah Mining Company (Limited), at London, England, and Haven became one-ninth owner therein; that upon his return from England, the English and defendant companies entered into an agreement, bond and lease, as to the defendant's mining property, under the terms of which, among other things, the possession of the property was turned over to the English company, and the company, within two years from April 14, 1896, was to spend 1,500 pounds sterling in developing the property, building mills, etc., and was to have the right, at any time within the two years to purchase the property at a certain price fixed, or in the event the purchasing company did not exercise its option to purchase, then it was to have a certain number of shares of the defendant company's stock in return for the expenditure of the 1,500 pounds for development work; and that the documents relating to this lease and option to purchase were deposited in escrow with the banking house of the plaintiff, with an indorsement on the envelope, as follows:

"The within deed of the Queen of Sheba G. M. & M. Co., a corporation, to Alfred Stebbing, and 25,000 shares of the capital stock of said company, indorsed in blank by George D. Haven, are hereby placed in the hands of McCornick & Co., bankers, of Salt Lake City, Utah, and they are instructed to deliver said deed and shares of stock to said Stebbing, or order, upon a compliance with the terms of a certain contract this day entered into by and between said company and said Stebbing, for the purchase of the property described in said deed and contract, and a failure to comply with the terms of said contract upon demand of said company said deed shall be delivered by McCornick & Co. to it.

"THE QUEEN OF SHEBA G. M. & M. Co.,

"T. C. ROOKLIDGE," President.

Upon the mining property being turned over to the purchasing company, Haven became the manager thereof, and that company from time to time forwarded to him the money for...