Ruffati v. Societe Anonyme des Mines de Lexington

• Decision Date: 27 July 1894
• Docket Number: 487
• Court: Utah Supreme Court
• Parties: JOSEPH RUFFATTI, RESPONDENT, v. SOCIETE ANONYME DES MINES DE LEXINGTON, A CORPORATION, APPELLANT. [1]

37 P. 591

10 Utah 386

JOSEPH RUFFATTI, RESPONDENT, v. SOCIETE ANONYME DES MINES DE LEXINGTON, A CORPORATION, APPELLANT. ^[1]

No. 487

Supreme Court of Utah

July 27, 1894

APPEAL from the District Court of the Third Judicial District. Hon George W. Bartch, Judge.

Action by Joseph Ruffatti against Societe Anonyme Des Mines De Lexington and another to recover damages for breach of contract. From a judgment for plaintiff against the company it appeals. The opinion states the facts except the following: There was an agreement entered into in open court between the counsel in the case and noted by the reporter that either counsel might take any exceptions to the charge given or any part of it, or the refusal to give any charge requested, but no exceptions were afterwards extended upon the record.

Affirmed.

Messrs. Marshall & Royle, for appellant.

No facts were in issue unless charged in the complaint, and no relief should have been granted upon proof of any contract not set up in the complaint, nor should the court or the jury have given any weight to the evidence of any contract which varied materially from the one set up in the complaint. There is a material variance between the allegations and the proof. The complaint set out the contract between the company and Lavagnino. The jury found in favor of Lavagnino but against the company, but the plaintiff testifies that he knew no one in the contract but Lavagnino. He answered that Lavagnino only owed him, and that the company did not owe him. The complaint was not amended, nor was any application made to amend. 2 Comp. Laws 1888, §§ 3252, 3254; Sling v. Insurance Co., 7 Utah, 443; Stout v. Coffin, 28 Cal. 67; Mondran v. Goux, 51 Cal. 151; McCord v. Seale, 56 Cal. 264; Burke v. Levy, 68 Cal. 32; Von Dratchenfels v. Doolittle, 77 Cal. 296. Even if there was such a contract as that set out in the complaint, plaintiff cannot recover because he did not comply with its terms. The evidence all shows that the work was not done in a proper and miner-like manner. The court erred in permitting plaintiff, under a motion to amend the complaint, to add a verification thereto, when there was no verification or attempt at verification of the two preceding complaints; and also erred in overruling defendant's motion to strike out the verification. First, because the verification is no part of the complaint, and leave to amend the complaint would not authorize the addition of a verification. 1 Nash's Pleads. and Pr. 271; 1 Estes Plead. § 280; Survivor v. McAvoy, 6 How. Pr. 200.

Mr. Richard B. Shepard, Mr. H. O. Shepard, Mr. J. M. Bowman and Mr. A. N. Cherry, for respondent.

It is no abuse of discretion for the court to permit a pleading which has been filed without a verification to be afterwards verified. Case v. Edson, 40 Kan. 161; Johnson v. Jones, 2 Neb. 126; Buell v. Beckwith, 59 Cal. 480; Angier v. Masterson, 6 Cal. 61; Arrington v. Tupper, 10 Cal. 465; Latimer v. Ryan, 20 Cal. 629; Thornton v. Borland, 12 Cal. 439; Robinson v. Smith, 14 Cal. 254; Gillan v. Hutchinson, 16 Cal. 154. Another justification for Ruffatti bringing this action jointly and severally against both defendants is this: The Societe Anonyme des Mines de Lexington, being a foreign corporation, organized in France, and Lavagnino being, by the evidence and pleadings, the admitted agent of it, the law presumes them both to be principals, and jointly liable. Story on Agency (9 ed.), §§ 268, 290; Addison on Con. (Abbott's ed.), 116; Chitty on Contracts (11 Am. ed.), 316; Wharton on Agency, § 791; Dunlap's Paley on Agency (4 ed.), 373; Rogers v. March, 33 Me. 112; McKenie v. Nevins, 22 Id. 138; 1 Am. & Eng. Enc. of Law, 404, et seq., and notes; 2 Kent's Commentaries (12 ed.), § 631 and notes; Vawter v. Baker, 23 Ind. 63; Kirkpatrick v. Stainer, 22 Wend. 244. Agent and principal are both liable jointly and severally when principal is undisclosed but afterwards discovered. Taintor v. Prendergast, 3 Hill, 72; Hopkins v. Lecontre, 4 La. 641; Hyde v. Wolfe, 4 Id. 234; Beebe v. Roberts, 12 Wend. 413; Mechanic's Bank v. Bank, 5 Whar. 326; Story on Agency (9 ed.), § 291. "In an action, on an alleged joint contract, the plaintiff may recover against one of the several defendants, who prove to be solely liable. In such cases, under the code, the rule of the common law does not apply." Brumskill v. James, 11 N.Y. A. 294; Abbott's Trial Brief on Pleadings, § 1032; Stedeker v. Bernard, 102 N.Y. A. 327; McIntosh v. Ensign, 28 Id. 169; Fieldin v. Lahens, 6 Ab. Prac. Repts. N. S. 341; Herrington v. Robertson, 71 N.Y. A. 281; Shain v. Forbes, 82 Cal. 577. "If the difference is so slight that the adverse party has not been misled, but, in preparing to meet and contest the case as alleged, he is fully prepared to meet and oppose the one to be actually proved, that no effect whatever is produced by the variance; to impose any loss or penalty on the pleader would be arbitrary and technical." Pomeroy's Rem. & Rem. Rights (2 ed.), § 554; Miller v. Kendig, 55 Ia. 174; Gaines v. U. T. & I. Co., 28 O. St. 418; Cody v. Bemis, 40 Wis. 666; Flanders v. Cottrell, 36 Id. 564; Giffert v. West, 37 Id. 115; Chunot v. Larsen, 43 Id. 536; Russell & Co. v. Loomis, 43 Id. 545; Ryan v. S. Fire Ins. Co., 46 Id. 671; Miller v. Bergenthall, 50 Id. 474; City of Huntington v. Mendenhall, 73 Ind. 460. A mere parol license, coupled with an interest growing out of expenditures of money or labor, is not revocable at the pleasure of the licensor. Silsby v. Trotter, 29 N. J. Eq. 228; Bush v. Sullivan, 3 Green. (Ia.) 344; Iron Co. v. Wright, 32 N. J. Eq. 248; Kamphouse v. Gaffner, 73 Ill. 453; Dark v. Johnson, 55 Pa. St. 164; 15 Am. and Eng. Enc. of Law, 600; Bambridge on Mines, ed. 1841, pp. 167, 168. "The entire charge of the court must be considered together, each part as qualified by other parts; and if, when so considered, it is substantially correct, it is sufficient." People v. Oleson, 4 Utah, 413; Griffith v. Clift, Id. 462.

SMITH, J. MERRITT, C. J., and MINER, J., concur.

OPINION

SMITH, J.

This is an action commenced by the plaintiff to recover the sum of $ 15,998.66 from the defendants. The jury returned a verdict for $ 5,000 against the corporation commonly known as the Lexington Mining Company, its exact title being the Societe Anonyme des Mines de Lexington, a corporation organized under the laws of France. The action is upon a contract for damages arising from a breach of it by the defendants. In substance the complaint is that in December, 1890, the plaintiff and the defendants, to-wit, the mining company and one Lavagnino, made a contract by which the plaintiff leased and undertook to work certain mining grounds in a portion of what is known as the "Old Telegraph Mine," in Salt Lake county; that the lease was for the period of three months, expiring on the 10th day of March, 1891; that by the terms of the lease the plaintiff should work the portion of the mine assigned to him for that purpose, should mine and remove the ore therefrom at his own cost, and deliver the same, when thus mined, to the defendants at the usual place in said mine for shipment and sale; that the defendants were to ship and sell the ore, after thus mined and delivered, without any cost or charge to the plaintiff, and out of the proceeds of the sale of the ore was first to be paid the cost of shipping and sampling the same, and the net proceeds were to be divided, one-third to the defendants, and two-thirds to the plaintiff.

It is also claimed that under this lease the plaintiff worked for 58 days, and discovered a large and rich body of ore, and that he had extracted ore, and delivered to the defendants, of the value of $ 10,000, after deducting the expenses of shipping and sampling the same, and that he had in sight, ready to be mined and broken down, on the day when he was ousted, to-wit, the fifty-eighth day of his lease, about 300 tons of ore, of the value of $ 100 per ton net, and that within the remaining twenty-eight days of his lease the plaintiff could have mined and removed from said mine 140 tons of such ore; that his profit on such 140 tons would have been $ 9,332, or two-thirds of the net value of the same. The suit is to recover two-thirds of the $ 10,000 worth of ore which he alleges he had mined and delivered to the defendants, and two-thirds of the profit he would have made if he had been permitted to work during the remainder of his term. It is also alleged that without cause he was ousted wrongfully by the defendants on the fifty-eighth day of the term. In the answer it was alleged that the defendant Lavagnino was merely agent or manager for the defendant the Lexington Mining Company, and this appeared to be established by the proof, and the jury rendered their verdict against one, only, of the defendants, to-wit, the mining company. The case was tried to a jury, the defendants having denied the allegations of the complaint, and the jury rendered a verdict, as above stated, against the mining company alone, for $ 5,000. Motion for a new trial was made and overruled, and an appeal taken from the judgment and order denying a new trial.

The first matter complained of by the appellant is that the evidence is insufficient to justify the verdict. Several particulars are specified. They may be grouped briefly as follows: (1) There is no evidence to show that the two defendants were the owners of the mine; (2) there is no evidence to show that as such owners they made a lease to the plaintiff; (3) there is no evidence to show that the defendants, or either of them, made a lease of the mine, or any part of it, to the plaintiff; (4) that defendants, or either of them, put plaintiff in the possession thereof; (5) there is no evidence to show that plaintiff did his work in...