Montana Tonopah Mining Co. v. Dunlap

• Decision Date: 06 May 1912
• Docket Number: 2,030.
• Citation: 196 F. 612
• Parties: MONTANA TONOPAH MINING CO. v. DUNLAP.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F. 612

MONTANA TONOPAH MINING CO. v. DUNLAP.

No. 2,030.

United States Court of Appeals, Ninth Circuit.

May 6, 1912

The defendant in error was plaintiff in the court below, where he brought the action to recover the value of services claimed to have been rendered by him for the defendant during a period of about seven years at Tonopah, Nev. During that period he was officially connected with the company, first as secretary and treasurer at a fixed salary which was regularly paid him, next as a director, and then as vice president of the corporation. From January, 1903, to October 15, 1903, he was secretary and treasurer at a salary of $150 a month, which salary was increased to $200 a month for the period extending from October 15, 1903, to February 2, 1905 at which time he resigned the office of secretary and treasurer. From September, 1903, to February 15, 1910, he was one of the directors of the company, and from September 11 1906, to February 15, 1910, was its vice president. On the last-mentioned day he resigned as director and vice president of the company, and on the 26th of the same month commenced the present action, alleging in his complaint that from about January, 1903, to about February 15, 1910, the plaintiff was engaged in the service of the defendant, and rendered it services at its request for which the defendant agreed to pay the plaintiff whenever it was out of debt, and that on February 15, 1910, the defendant was out of debt, and had a large amount of surplus funds in its treasury; that the reasonable value of the services so rendered by the plaintiff was the sum of $24,900, no part of which has been paid except the sum of $3,900 paid the plaintiff prior to January, 1905 and $500 which was subsequently paid him, leaving a balance of $20,500 still due from the defendant to the plaintiff, for which he prayed judgment, with costs.

By its answer and amended answer the defendant company set up the facts respecting the holding by the plaintiff of the offices of secretary and treasurer and director and vice president, the fixed salary of the office of secretary and treasurer during the time the plaintiff held it, and the full payment of such salary by the company, the duration of time that plaintiff held the office of director and vice president, to which it was alleged and proved no compensation was attached, and the answer then alleged that the plaintiff never performed any services for or on behalf of the defendant company except such as were incidental to the offices he at the time held, and that there was nothing owing from the defendant to the plaintiff. By a further amended answer the defendant pleaded the statute of limitations against the claim of the plaintiff for any services rendered prior to a date four years before the commencement of the action.

The case was tried before the court with a jury, which returned a verdict in the plaintiff's favor for $7,500, for which, with costs, judgment was entered against the defendant company, which brings the case here on writ of error.

Rufus C. Thayer, of San Francisco, Cal., for plaintiff in error.

McIntosh & Cooke, of Tonopah, Nev., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge (after stating the facts as above).

Upon a careful examination of the record, we find in the evidence sufficient to support the verdict of the jury, for, this being a writ of error, the rule is that, if there be any substantial evidence tending to support the verdict, it is enough, the proper weight to be given to the evidence not being within our province, which is confined to a consideration of exceptions to admission or rejection of evidence, and to the charge of the court and its refusal to charge. New York, L.E. & W.R. Co. v. Winter's Administrator, 143 U.S. 60, 75, 12 Sup.Ct. 356, 36 L.Ed. 71. What the plaintiff claimed and gave testimony tending to support was that the services for the value of which he sued were beyond the scope of his duties as secretary and treasurer, director, or vice president, and that they were neither volunteered nor gratuitous, but were rendered at the express request of the president and manager of the company, and that both he and the company understood and expected that they were to be paid for. It is true that there was evidence tending to negative all of those matters, but there was some tending to sustain them. For instance, the plaintiff testified, among other things: That during the year 1903, in addition to his duties as secretary and treasurer he stopped on two occasions at Reno, under the instructions of the president and general manager of the company, 'to check up the patent survey notes with the Surveyor General, and after they were in shape brought them to Carson City, and made an abstract of title of every bit of property that the company owned, wrote every deed in my own handwriting, copied them from the records, brought them to Carson City, presented them to the Land Office, and got my order for publication, proceeded to Tonopah and put the matter through publication, and carried on the correspondence that was necessary and incident thereto; came to Carson City on the 21st day of December, 1903, and made the final payment to the Land Office, and forwarded the papers to our attorney in Washington, Horace F. Clarke, who had charge of the patent proceedings for that end of the line. ' That in March, 1904, an accident occurred in the mine resulting in the death of one Mitchell; that he was called to the mine, and arrived there, according to the testimony of the witness, 'just as the body was hoisted to the surface, and it was put into the wagon that I had taken up there for the purpose. I drove to the undertaking establishment and turned the body over, and then proceeded to the house of the widow, in company with Mr. Lynch, one of the directors, and there proceeded to relieve the immediate needs and distress of the family by giving them a certain sum of money, $100, that I got from Mr. Lynch for the purpose, which was afterwards repaid. I had charge of the coroner's inquest the next night. We had no attorney in Tonopah at the time; Dixon, Ellis & Ellis of Salt Lake being our attorneys. I conducted the examination of the witnesses before the coroner's jury, and obtained a verdict of absolute exoneration from responsibility by the jury. I advised the liability company in which we were carrying liability insurance, received word from them by wire later to the effect that they denied absolutely any responsibility or liability, conferred with Mr. A. C. Ellis, Jr., the vice president, by letter and wire in regard to the matter, proceeded to negotiate with the family of the deceased, and finally succeeded in making a complete settlement with them, getting a receipt therefor for $1,250, and drew up the papers in settlement myself. As I said, we had no attorney, no local attorney in Tonopah, and, after strenuous correspondence with the San Francisco office of the liability company, induced them to reimburse the Montana Tonopah Mining Company in the amount of $1,250, which I had paid to the widow.'

Further quoting from the testimony of the plaintiff, he said that in the early summer of 1904 'a party came to me and advised me of the fact that there was a scheme on foot to throw the Montana Tonopah Mining Company in the hands of a receiver by a certain stockbroker by the name of Barton Pittman with offices in Tonopah, who had as his associates in the plan New York and Philadelphia brokers. The plan was for Pittman to place 500 shares of our stock in the name of Dan W. Edwards, with instructions for him to come to my office, and demand of me in such a way that I would refuse it, the privilege to inspect the mine, and also inspect the books of the company; and having refused a stockholder that privilege, the papers were already drawn, and a team hired by Mr. Pittman, preparatory to a trip to Belmont, then the county seat, where he would make application to have a-- I frustrated the plan by, instead of refusing Mr. Pittman privilege to examine the mine, I arranged for him to examine it. This he did not do. I declined to allow him to examine the books for a financial statement until I could get the consent of the directors, simply for the purpose of saving time, and getting time. That would not suit his plans, however. He said it would take too long, and it would be the 15th of the next month. This was about the 20th of that month, and the scheme fell through on that ground.'

The plaintiff further testified that upon the acceptance of his resignation on the 2d of February, 1905, the board of directors of the company adopted this resolution, which was introduced in evidence from the minutes of the company:

'Whereas, R. P. Dunlap has tendered his resignation as secretary and treasurer of this company,

'Be it resolved, that the acceptance of this resignation is with sincere regret in losing the valuable services of an officer who has for the past two years shown such zealous interest in its affairs, and whose most able and efficient performance of the peculiarly difficult duties that have devolved upon him at various times, has earned for him the warmest appreciation of the board and stockholders, particularly in his careful, conscientious, and always satisfactory management of the entire business of the company in addition to the affairs of his own office, during occasional and enforced absences of General Manager Knox, and for his energetic and expeditious services in attention to matters connected with securing patent for the company's mines.

'During the past year we have had one serious accident in the mine which might have resulted in the commencement of a damage suit against

...