Robert E. Lee Silver Min. Co. v. Englebach

• Decision Date: 05 December 1892
• Citation: 18 Colo. 106,31 P. 771
• Parties: ROBERT E. LEE SILVER MIN. CO. v. ENGLEBACH et al.
• Court: Colorado Supreme Court

31 P. 771

18 Colo. 106

ROBERT E. LEE SILVER MIN. CO. v. ENGLEBACH et al.

Supreme Court of Colorado

December 5, 1892

Error to district court, Lake county.

Assumpsit by A. L. Englebach and another against the Robert E. Lee Silver Mining Company. From a judgment for plaintiffs, defendant brings error. Affirmed.

The other facts fully appear in the following statement by HAYT C.J.:

The complaint alleges that the Robert E. Lee Silver Mining Company, plaintiff in error here and defendant below, is indebted to A. L. Englebach et al., defendants in error, in the sum of $573.32, for materials and work furnished between November 1, 1886, and the 10th day of November, 1888. Two bills of particulars were furnished covering the amount claimed. It is claimed that the items included in the first bill were ordered by William C. Boschen, at the time manager and agent of the plaintiff in error, and that one Clint Roudebush was such manager and agent during the time the items covered by the second bill were furnished. The defendant company, answering, denied each allegation of the complaint. A second defense was also filed, which amounted to no more than a denial, and need not be further considered. Upon these issues the cause was tried to the court; the trial resulting in a verdict for the plaintiffs below in the amount claimed. No motion for a new trial was filed at the term of court at which the trial was had. Such a motion was filed however, at a subsequent term. This motion was stricken from the files on motion of plaintiffs. Shortly thereafter the defendant company filed a motion to set aside the findings and judgment of the court, under section 75 of the Code of Civil Procedure. This motion was overruled, and judgment entered on the findings.

A. S. Weston, for plaintiff in error.

Blake & Sayre, for defendants in error.

HAYT C.J., ( after stating the facts.)

A number of errors are assigned to the proceedings in the court below. The errors pressed in this court may all be considered under three heads: First, is the evidence sufficient to warrant a judgment for plaintiffs? second, did the court err in striking out the defendant's motion for a new trial filed at a term subsequent to the term at which the cause was tried? and, third, did the court err in overruling defendant's motion to set aside the judgment, and for a new trial of the cause, under section 75 of the Code?

1. The evidence shows beyond controversy that work was performed and materials furnished by the plaintiffs to the amount alleged in the complaint, the dispute being as to whether the Robert E. Lee Silver Mining Company was liable for the value of the same. The evidence leaves no doubt that the persons authorizing the work to be done, and the materials to be furnished, did so, claiming at the time to act for and on behalf of this company. It is contended, however, that neither Mr. Boschen nor Mr. Roudebush was authorized to bind the company for such materials and labor. Neither of these alleged agents was introduced as a witness upon the trial but plaintiffs were allowed to state upon the witness stand that the bills in suit were ordered by these persons for the Robert E. Lee Company, over the objection of the defendant. It is well settled that neither the fact of agency nor the extent of authority can be proved by the declarations of the alleged agent; and it is equally as well established that when an agent makes a contract, or does any act representing his principal, his declarations made at the time, explanatory of the act, are admissible in evidence on behalf of either party. Story, Ag. (7th Ed.) § 136; Whart. Ev. (3d Ed.) § 1173. It is true that as a general rule such declarations ought not to be received until proof has been made of the agency; but the order in which evidence may be introduced is almost entirely within the discretion of the trial court, and, unless the record disclosed a manifest abuse of such discretion, appellate courts will not interfere. This is the rule where cases are tried to a jury, and the reason for the rule is much stronger when, as in this case, a jury is waived, and both issues of law and fact are submitted to the court. The evidence of the declarations explanatory of the acts of Boschen and Roudebush was followed by competent evidence ending to establish their authority in the premises. The testimony of E. A. Guilbault, the secretary of the Lee Company during the times the items covered by both bills were furnished, is to the effect that Boschen had charge of the affairs at the mine, and handled things in his own way, until he was superseded by Roudebush. It seems that at this time one Fretz worked the property under a lease, paying as rental therefor a certain percentage of the proceeds, and that Boschen handled the affairs for the Lee Company and for the lessee as well; 'that he attended to everything at the mine for the lessee and the company.' The witness further testified that Boschen acted in such capacity for...