Rara Avis Gold & Silver Min. Co. v. Bouscher

• Decision Date: 03 December 1886
• Citation: 9 Colo. 385,12 P. 433
• Parties: RARA AVIS GOLD & SILVER MIN. CO. v. BOUSCHER.
• Court: Colorado Supreme Court

12 P. 433

9 Colo. 385

RARA AVIS GOLD & SILVER MIN. CO. v. BOUSCHER.

Supreme Court of Colorado

December 3, 1886

Appeal from district court, Gilpin county.

Plaintiff Bouscher, brought his suit in the court below to recover upon the quantum meruit for services rendered to the defendant company. He also prayed a lien, under the mechanic's lien law, upon the property described. Plaintiff's services consisted of work as foreman superintendent, and mechanic upon certain mines belonging to defendant; also of labor as defendant's agent in disbursing its money, and in keeping its accounts. Defendant in its answer, after pleading the proper denials, sets up a contract with plaintiff which provided for a specific monthly salary, and avers that the same was fully paid. Defendant also demands a judgment against plaintiff for his misappropriation of certain of its moneys, and for injuries suffered through his negligent and unskillful development of its mines, and his negligent and wasteful disbursements of its funds.

The trial resulted in a verdict and judgment in plaintiff's favor for the sum of $2,404.67. A lien for the entire judgment was also decreed. From this decree and judgment the present appeal was taken.

The instruction referred to in the opinion is as follows 'No. 2. The court instructs the jury that if you find from the evidence that the value and amount of ore in sight, or on the dump, did not realize the amount reported by Bouscher as being in sight and on the dump, and you find that Bouscher's report was made to the company in good faith, or that Bouscher was mistaken, or that the report was sent to the company for the purpose of selling stock, and the company were not deceived thereby, or that the report was ratified by the members of the company, directors, or some of them, with agents appointed for the purpose, or the company, after such report was submitted, examined the mine, and the subject-matter of such report, and did not object to it, but went on, and expended the company's money, under Bouscher's direction, then you must not find any damages for the company, no matter what such report contained.'

The mechanic's lien law in force at the time of the transaction is entitled 'An act to secure liens to mechanics and others.' Section 4 reads: 'All miners, laborers, and others who work or labor to the amount of $25 or more, in or upon any mine, lode, or deposit, * * * shall have, and may each respectively claim and hold, a lien. * * *' Section 1 thereof also reads: 'All artizans, mechanics, and other who shall perform work or labor * * * for the construction or repair of any building, or other superstructure shall have, and may claim and hold, a lien. * * *'

Alvin Marsh, for appellant, Bouscher.

H. M. Orahood and J. E. Rockwell, for appellee, Rara Avis Gold & Silver Min. Co.

HELM J.

There is nothing in the pleadings or evidence that calls for the second instruction given on behalf of plaintiff below, or for any instruction whatever upon the subject-matter therein contained. The damages which defendant sought to recoup were-- First, $1,045.23 of its funds, alleged to have been wrongfully appropriated...