Smith v. Boyden
| Decision Date | 25 July 1930 |
| Docket Number | 5390 |
| Citation | 290 P. 377,49 Idaho 638 |
| Parties | BEN H. SMITH, Appellant, v. W. R. BOYDEN, PAUL G. SAVIC and UNITED MERCURY MINES COMPANY, a Corporation, Respondents, and H. HOLLAND, Defendant and ELLSWORTH BUCHANAN, Plaintiff, |
| Court | Idaho Supreme Court |
MASTER AND SERVANT-PAYMENT ON CONTINGENCY-ESTOPPEL-APPEAL AND ERROR-FINDINGS UNDISTURBED, WHEN.
1. Findings on conflicting evidence having support in record will not be disturbed on appeal.
2. Before plaintiff could recover compensation under contract for superintending construction, production of mercury by plant was required.
3. Defendants held not estopped to set up defense that payment to plaintiff for superintending construction of mercury ore reduction plant was subject to condition plant produced mercury on theory failure was fault of original contractor.
APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. B. S. Varian, Judge.
Action to foreclose mechanic's lien. Judgment for defendants. Affirmed.
Judgment of the trial court affirmed, with costs to respondents.
Charles F. Reddoch and G. G. Adams, for Respondent Paul G. Savic.
Fisher & Coffin, for Appellant.
Under C. S., sec. 6717, if the plaintiff claims an estoppel against a defense set up in the answer, he may give evidence thereof without special pleading. (Powell-Sanders Co. v Carssow, 28 Idaho 201, 152 P. 1067; Gans v. St. Paul F & M. Ins. Co., 43 Wis. 108, 28 Am. Rep. 535.)
The fundamental principle underlying equitable estoppel is stated in the following cases: National Safe Deposit S. & T. Co v. Hibbs, 229 U.S. 391, 33 S.Ct. Rep. 818, 57 L.Ed. 1241, 1247; Keystone Pipe & Supply Co. v. Milner, (Tex. Civ. App.) 6 S.W.2d 771, 775; Pennsylvania R. R. Co.'s Appeal, 86 Pa. 80, 84; Pennypacker v. Latimer, 10 Idaho 625, 626, 81 P. 56.
Hawley & Worthwine and Barber & Barber, for Respondents.
Estoppel cannot be invoked by appellant when he is at fault. (Cases cited by appellant.) Loss should fall upon him who caused the loss. (Wade Bros. v. Bybee, 39 Idaho 681, 684, 229 P. 662.)
Varian, J., did not participate.
In 1923 the defendant Boyden made a contract with the defendant United Mercury Mines Company, whereby he agreed to construct and install, upon mining property of the company in Valley county, a mercury ore reduction plant for the agreed compensation of $ 40,000, $ 15,000 to be paid in stock of the company, and $ 25,000 to be paid out of fifty per cent of the proceeds of mercury produced by the plant. The plant was constructed after a fashion, but failed to operate successfully and never produced any mercury. The company refused to pay for it, and Boyden and his assignees brought suit against the company for the contract price. In that suit a judgment for the mining company was affirmed on appeal to this court. (Boyden v. United Mercury Mines Co., 46 Idaho 303, 267 P. 830.) The statement of facts contained in the decision of that case may be referred to for a history of the transaction.
Boyden's contract with the company provided that he should employ Ben H. Smith, the present plaintiff, who was the inventor and owner of the patented process under which the plant was to be constructed, to superintend the building of the plant. Boyden and Smith thereupon made a contract under which Smith was to superintend the construction of the plant, and for his services, together with the right to use the patented process, was to receive as compensation from Boyden $ 5,000 when and as received by Boyden from the first proceeds of the plant paid to Boyden under his contract with the company, and was to receive also certain royalties. This contract referred to Boyden's contract with the company, and recited that Smith fully understood that contract; and Smith had in fact signed a certificate attached to the contract of Boyden with the company, reciting Smith's assignment to Boyden of the right to use the patented process, and defining his own claims to royalties.
In 1924 the construction of the plant was entered upon, Smith furnishing the plans and specifications, superintending the work, and personally doing much of the labor upon it; but on August 30, 1924, the work not yet being fully completed, Smith abandoned the work and left the premises. On September 11, 1924, he and Boyden made a new written contract providing that for the exclusive use of the patent in Valley county, and as settlement for the installation of the plant which had been done, Smith should receive certain stock of the mining company and royalties and the sum of $ 4,500, which sum was to be paid direct by the company to Smith from the proceeds from fifty per cent of the first net proceeds secured by the company from the sale of mercury reduced by the plant installed by Smith; and to carry out this agreement for payment, Boyden gave to plaintiff an order upon the mining company.
In July, 1925, plaintiff returned to the mine, did some further work on the plant, and later...
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Hood v. Gordy Homes, Incorporated, 7795.
...of a particular fund does not create an absolute liability." Zorn v. Sweet, 1931, 77 Utah 389, 296 P. 242, 244. See also Smith v. Boyden, 1930, 49 Idaho 638, 290 P. 377. It is true that where there is a pre-existing debt and by a subsequent agreement payment is deferred to the happening of ......
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Peterson v. Bell, 5565
... ... is reasonable evidence sustaining the findings of the trial ... court this court will not disturb such findings. (Smith ... v. Boyden, 49 Idaho 638, 290 P. 377; Weigle v ... Salmino, 49 Idaho 522, 290 P. 552.) ... The ... judgment is affirmed, with costs ... ...
- Eldridge v. Dickerson, 5581