Miller v. Brown

• Decision Date: 31 January 1891
• Citation: 47 N.W. 895,82 Iowa 79
• Parties: JAMES MILLER, Appellee, v. T. E. BROWN, Appellant. [*]
• Court: Iowa Supreme Court

47 N.W. 895

82 Iowa 79

JAMES MILLER, Appellee, v. T. E. BROWN, Appellant. ^[*]

Supreme Court of Iowa, Des Moines

January 31, 1891

Appeal from Polk District Court.--HON. JOSIAH GIVEN, Judge.

ACTION to recover for services rendered, and for labor performed in prospecting for coal, and in sinking a coal shaft, and to recover damages for the alleged breach of an agreement to deliver certificates of the capital stock of a coal company. There was a trial by a jury, resulting in a verdict and judgment for the plaintiff. The defendant appeals.

Reversed.

St John, Stevenson & Whisenand and Kauffman & Guernsey, for appellant.

Parsons & Perry, for appellee.

OPINION

ROBINSON, J.

The petition contains three counts. In the first plaintiff alleges that, in the year 1884, he performed certain labor for defendant in prospecting for coal, and in sinking drill holes for that purpose, the reasonable value of which was seven hundred and seven dollars. In the second count plaintiff claims that in the same year he entered into an oral agreement with the defendant to take charge as superintendent of the sinking of a shaft for the purpose of coal mining, for the compensation of one hundred dollars per month, and that he acted as superintendent under that agreement for the period of six months, for which there is now due him the sum of six hundred dollars. In the third count the plaintiff alleges that, in the year 1884, it was orally agreed between the plaintiff and the defendant that a stock company should be organized for the purpose of carrying on the business of coal mining under the personal superintendence of the plaintiff; that, in consideration of services to be rendered by the plaintiff he was to be paid one hundred dollars per month, and receive one-fifth of the capital stock of the company, which was to be issued in the name of K. C. Miller, for the benefit of the plaintiff, as soon as the company should be organized; that the company was organized under the name of the Walnut Creek Coal Company on or about the twenty-fifth day of November, 1884; that the defendant has refused to cause to be delivered to the plaintiff certificates for his share of the stock, and has converted the same to his own use; that the stock so converted was worth more than ten thousand dollars.

For answer to the first and second counts of the petition the defendant denies the allegations thereof, and avers that he has paid the plaintiff in full for all services rendered. The allegations of the third count are also denied. For further answer, and by way of counterclaim, the defendant alleges that, at divers times between the first day of July, 1886 and the fifteenth day of January, 1887, at the request and for the use of the plaintiff, he paid sums of money, amounting, in the aggregate to two hundred and eighty-four dollars, of which the sum of one hundred and twenty dollars is due and unpaid. And judgment for that amount is demanded. The verdict of the jury was for the plaintiff in the sum of nine hundred and fifty-seven dollars. Certain special findings were returned, which showed that the jury allowed the plaintiff three hundred and fifty-seven dollars on the first count of his petition, six hundred dollars on the second and nothing on the third, and that the defendant was allowed nothing on his counterclaim. Judgment was rendered in favor of the plaintiff for the amount of the verdict and costs. On a former submission of this cause, an opinion was filed affirming the judgment of the district court. 42 N.W. 561. A petition for rehearing was granted, and the cause is again submitted for our determination.

I. The appellant contends that the amount allowed by the jury on the first and second counts of the petition is excessive. Plaintiff claims that he is entitled to compensation for drilling and sinking six prospect holes, at the rate of one dollar per foot for each hole drilled to the depth of one hundred feet, or less, and for all in excess of one hundred feet at the rate of one dollar and twenty-five cents per foot. The petition avers that one hole was one hundred and seventy-one feet deep; that another was seventy-seven feet deep, another fifty-seven feet deep, another one hundred and thirty-three feet, another sixty-eight feet, and another one hundred and sixty feet; and that the amount due for sinking them all, at the rate specified, is seven hundred and seven dollars. The plaintiff, in testifying, stated that the drilling of all the wells amounted to six hundred and ninety dollars, and that he had received on account thereof the sum of three hundred and fifty dollars. It seems that one hole was sunk in what is called "Brown's Woods," and the...