Owyhee Land & Irrigation Co. v. Tautphaus

• Decision Date: 06 May 1901
• Docket Number: 654.
• Citation: 109 F. 547
• Parties: OWYHEE LAND & IRRIGATION CO. v. TAUTPHAUS.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F. 547

OWYHEE LAND & IRRIGATION CO. v. TAUTPHAUS.

No. 654.

United States Court of Appeals, Ninth Circuit.

May 6, 1901

The defendant in error was the plaintiff in an action in the circuit court brought to recover a balance claimed to be due him upon a written contract. He alleged in his complaint that on June 5, 1893, he entered into a contract with the plaintiff in error, the Owyhee Land & Irrigation Company, a corporation, whereby he agreed to dig a certain canal, for which the said corporation promised to pay him $150,000, three-fourths of which was to be paid in cash, and the remainder in the company's bonds. The complaint alleged the performance of the contract upon the part of the plaintiff, and acceptance of the canal by the corporation, and admitted payment of the contract price therefor, except a balance of $42,851.86 unpaid, for which judgment was demanded. The plaintiff in error answered denying all the material allegations of the complaint, and particularly denying that it had entered into the contract. On February 1, 1900, the defendant in error filed in the circuit court, and served upon counsel for the plaintiff in error, a notice that on the 12th day of March, 1900, he would move the court for an order requiring the defendant in said action to produce at the trial of the cause a complete record of all meetings of its board of directors and its stockholders,-- especially all such as touched upon the construction of dams and canals; also its articles of incorporation, and all letters written by said corporation or its officers to the plaintiff, and all letters received by said corporation from the plaintiff; also all letters which passed between the corporation and one who was said to be its agent with reference to the construction of dams and canals. The notice closed with the words, 'if defendant fails or refuses to produce such evidence, plaintiff will move for judgment by default. ' On the date mentioned in the notice no action was taken, and, so far as the bill of exceptions shows, no order was applied for in pursuance thereof until April 6, 1900, when the cause came on for trial before a jury. After the jury was regularly impaneled and sworn, the plaintiff in the action moved the court that the default of the defendant be entered, for failure to produce the books and other evidence referred to in the notice. The court held that the defendant had had sufficient notice to produce said books and other evidence, and, having failed to do so, was estopped to deny that the contract in question was its contract, and held that the defendant was in default, but that the court would inquire concerning the sum due under the contract. Whereupon the plaintiff was sworn as a witness in his own behalf, and testified that he had a contract with the corporation, and that the canal, and the same had been accepted by the defendant. His counsel offered the contract in evidence, to which the defendant objected for the reason that it had not been proven to be the contract of the corporation. The court overruled the objections and admitted the contract in evidence. The defendant excepted. The defendant then offered to prove that it did not execute or enter into the contract, and that neither the president nor any officer of the corporation was authorized to execute any such contract, and that neither the board of directors nor the stockholders had ratified any such contract. To which offer the defendant objected, and the court sustained the objection. Thereupon the court instructed the jury to find a verdict for the plaintiff for the balance due, and for interest thereon from January 6, 1896, at 10 per centum per annum. The jury returned a verdict in accordance with the instructions.

Wyman &amp Wyman, for plaintiff in error.

James H. Hawley, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

The ruling of the circuit court in entering the default against the plaintiff in error was based upon section 724 of the Revised Statutes, which reads as follows:

'In the trail of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to

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