Rogers v. Gladiator Gold Min. & Mill. Co.

• Decision Date: 29 August 1907
• Citation: 113 N.W. 86,21 S.D. 412
• Parties: ROGERS v. GLADIATOR GOLD MIN. & MILL. CO. et al.
• Court: South Dakota Supreme Court

113 N.W. 86

21 S.D. 412

ROGERS v. GLADIATOR GOLD MIN. & MILL. CO. et al.

Supreme Court of South Dakota

August 29, 1907

Appeal from Circuit Court, Lawrence County.

Actions by Burt Rogers against the Gladiator Gold Mining & Milling Company, Gold Fish Mining Company, Red Cloud Mining Company and Cephas H. Crabtree, joined as a defendant in each action. From a judgment in favor of plaintiff in each action, and from an order denying defendants' application for a new trial, they appeal. Reversed as to defendants mining companies, and affirmed as to defendant Crabtree.

Haney J., dissenting.

James A. George, for appellants.

CORSON J.

Three actions were instituted by the plaintiff entitled as follows "Burt Rogers v. Gold Mining & Milling Company and Cephas H. Crabtree"; "Burt Rogers v. Gold Fish Mining Company and Cephas H. Crabtree"; "Burt Rogers v Red Cloud Mining Company and Cephas H. Crabtree"-all of which were tried as one; the jury returning a verdict in favor of the plaintiff upon each cause of action thus united. Judgment was entered accordingly, and, their application for a new trial having been denied, the defendants appealed.

The pleadings in each case are substantially as follows: Plaintiff alleges that the defendant corporation was organized and is existing under and by virtue of the laws of this state; that during 1900 and 1901 he performed certain services as an assayer and broker for and on behalf of the defendants, at their special instance and request, for which they promised and agreed to give him certain shares of capital stock in the defendant corporation; that, notwithstanding due demand therefor, defendants have failed and refused to deliver such stock; and that the highest market value of the stock during the period between such refusal and the date of the action was 40 cents in one case and 15 cents in the others. Without denying any of these allegations, except as to the value of the stock, and "while admitting that a promise was given the plaintiff for *** shares of stock as alleged," defendants aver "that the promise was coupled with a condition precedent which the plaintiff has never performed or attempted to perform"; deny "that plaintiff ever in good faith performed or acted as a broker for defendants"; and allege "that plaintiff's every act as a broker to defendants' stock has been hostile and inimical to the interests of these defendants."

The contention that the court erred in refusing to excuse certain jurors having an interest in the event of the action is not supported by the record. It discloses that three jurors were asked this question: "Do you own any stock in a mining company that was given you?" Each answered: "Yes." Thereupon defendants challenged each of them for cause, on the ground that he "was interested in the event of the suit." True, "interest on the part of the juror in the event of the action, or in the main question involved in the action, except his interest as a member or citizen of a municipal corporation," is a cause for challenge recognized by the statute. Rev. Code Civ. Proc. § 252, subd. 5. And no corporation existing under the laws of this state may lawfully issue stock, "except for money, labor done, or money or property actually received." Const. art. 17, § 8. But, when defendants' challenges were interposed, there was nothing of record to show that the action involved any question relating to the unlawful issuing of stock; nor did it appear that the challenged jurors were owners of any stock so issued. It not being shown whether the stock was given them by the corporation which issued it, or by persons to whom it had been lawfully issued, it will be presumed that they were owners of lawfully issued stock, and hence not disqualified, whatever questions may have been involved in the action.

Defendants' objection to the introduction of any evidence on the ground that neither complaint stated facts sufficient to constitute a cause of action was overruled. The objection was based on the theory that the contracts alleged in the complaints were invalid because inhibited by the provisions of the Constitution heretofore alluded to, and which are as follows: "No corporation shall issue stocks or bonds except for money, labor done, or money or property actually received; and all fictitious increase of stock or indebtedness shall be void." Article 17, § 8. It will be observed that Crabtree in his individual capacity and one of the corporations are joined as defendants in each complaint; that in each it is alleged that plaintiff performed certain services "for and on behalf of said defendants, at their special instance and request, for which the said defendants promised and agreed to give the plaintiff" certain shares of stock "in said defendant company"; and that it nowhere appears on the face of the complaint that Crabtree was acting for the corporation. As both defendants joined in the objection, it was properly overruled if the complaint stated a cause of action as against either defendant. It certainly did so as to Crabtree; nothing appearing in the complaint to repel the inference that he promised to deliver stock which had been lawfully issued.

The contention that certain testimony offered by the defendants was erroneously excluded is not tenable, for the reason that it was irrelevant and immaterial under the pleadings, which presented but two issues, namely, whether defendants' promise to deliver stock was coupled with a condition which had not been...