Union Gold Mining Co. v. Rocky Mountain Nat. Bank

• Decision Date: 01 February 1875
• Citation: 2 Colo. 565
• Parties: UNION GOLD MINING CO. v. ROCKY MOUNTAIN NATIONAL BANK.
• Court: Colorado Supreme Court

2 Colo. 565

UNION GOLD MINING CO. v. ROCKY MOUNTAIN NATIONAL BANK.

Supreme Court of Colorado

February, 1875

THIS case was twice before in this court, and is reported in 1 Col. 533, and ante, p. 248.

The judgment last before given, in the district court, having been reversed at the term of 1873, the cause was remanded and at the November term following of the Jefferson district court, was tried before the chief-justice and a jury.

One Perrin, called as a juror and examined by counsel as to his competency, deposed that he had, some three weeks previously received from one E., who sat as a juror at the former trial a detail of what E. alleged to be the facts in the case, and upon this had formed an opinion as to the merits of the controversy; that he had also expressed this opinion; that he still entertained, it, and thought it would require evidence to remove it. Examined by the court, the juror deposed that his conversation with E. occurred as they were going home together, and occupied about an hour; that E. made no comment upon the testimony, and expressed no opinion as to the credibility of witnesses; that he had had no conversation with any officer of either corporation, and had no acquaintance with any of them; that his conversation with E. was not characterized by any warmth of discussion; that he still recollected and could recount the substance of what E. had told him, and thought it would have some influence upon his mind; the question being repeated, he expressed himself as uncertain whether it would balance any thing in the evidence or not; that if he should be called as a juror he would endeavor to do justice between the parties; that he understood the duty of a juror to be to try the issue impartially upon the evidence, though what he had heard had created a prejudice in his mind.

The defendant's challenge to the juror for cause was overruled by the court, and an exception being reserved, this opinion of the court was assigned for error.

The testimony given in behalf of both plaintiff and defendant in great part the same as at the previous trial.

It was shown, however, that the work done by Sabin upon the premises belonging to Mr. Becker consisted of two levels ninety or ninety-five feet in length, which were stoped out overhead, sixty to eighty feet in height; the expense of this work Sabin estimated to be one-half as much as that of the work done upon defendant's property in the same time, and the production of ore in the same proportion. The work done by S. upon his own premises consisted of a level fifty feet in length. The expense of all this work, and of operating the mill, were carried to one account.

The alleged agent, Sabin, was examined in vacation before a commissioner selected by the parties.

In the course of his examination the witness deposed that the gold obtained by his mining was placed to the credit of the defendant in plaintiff's bank, and that he drew checks against it, subscribed in defendant's name by himself as agent. A motion to suppress this part of the deposition as secondary was overruled. Another witness, who had at one time kept the books in which Sabin$'s accounts were entered, was permitted to testify, against plaintiff's objection, that the vouchers taken by S. in his business were expressed to be for money received from defendant. Others who had receipted to S. for money paid by him on account of mining operations, were permitted to give like testimony against defendant's objection.

The same witness was permitted to testify as to a certain account therein, entitled 'Bates' Lode'; that every thing paid out for this mine and for the milling of the ore was placed to the debit of the account, and that the proceeds of the gold obtained were placed to its credit. All these rulings were assigned for error.

Defendant proved that when the overdraft amounted to something over $10,000, Sabin gave two promissory notes for so much of the amount, and this sum was credited to the account.

The officers of the bank swore, however, that they were not regarded as valid at the time of accepting them, and there was no evidence that they were received in payment absolute.

The credit given for the notes was finally erased, and in the account rendered prior to the institution of this suit no mention was made of the notes, nor was the fact of their existence ever communicated to any officer of the defendant before the last trial. The evidence tended to show that this omission to inform the officers of the mining company was by preconcert between Sabin and the bank officers.

Defendant offered to read from a book, which was spoken of as the corporate records of the mining company, what purported to be the record of proceedings had at a called meeting of the trustees in 1865, at which Sabin was appointed superintendent, and resolutions adopted defining his duties. The record was not authenticated, however, otherwise than by the testimony of Mr. Becker, who deposed that he was present at the meeting, and that the record offered was a correct record of the proceedings had. The book also contained what purported to be the record of proceedings of the trustees, by which Sabin's resignation was accepted, and the record of proceedings had at a stockholders' meeting, held in 1869, by which the act of Sabin in contracting the indebtedness in question was repudiated. These entries were also offered authenticated solely by the testimony of Mr. Becker; the officer who made the entries not being called, and the testimony being rejected, the defendant reserved an exception. The jury found the issues for the plaintiff, and assessed its damages in $30,358.22; and judgment having been given upon this verdict, the defendant prayed this appeal.

Mr. HUGH, BUTLER, Mr. G. B. REED, Mr. E. WAKELY, for appellant.

Mr. W. R. GORSLINE, Mr. H. M. TELLER, Mr. J. Q. CHARLES, for appellee.

HALLETT C. J.

Three trials, resulting in the same verdict, have been had in this cause, and the facts, so often determined upon substantially the same evidence, may now be accepted as well established. We have also considered the rules of law which should govern the action, and have now to ascertain whether those rules were correctly applied at the last trial. Certain questions, considered and determined at former hearings, may be laid out of view, as they are not now, in any manner, open to investigation in this court. Such is the corporate existence of appellee, and its right to maintain an action for money loaned, exceeding, in amount, ten per cent of its capital stock. Such, also, is the alleged misappropriation of the funds of the bank by its officers, which, it was supposed, would render the transactions between the parties fraudulent, and thus defeat the action. The authority of appellant to borrow money, not being expressed in its charter, was also denied, but we were of the opinion that, as debts might be created in prosecuting its enterprises, which the corporation would be legally bound to pay, money might be borrowed for the same purpose, if the corporation was not expressly prohibited from doing so. We further declared that the fact of Sabin's agency was material to be shown, in order that it might appear whether he had authority to borrow money, and, if he had no such authority, then as affecting the ratification of his acts by appellant. Objections to the evidence offered to prove the fact, now again earnestly urged, were then discussed, and our conclusion was that, in the absence of better evidence to prove an agency, resort may be had to facts which tend to show recognition, by the principal, of the alleged agent's authority. That an agency may be proved by the habit and course of dealing between the parties, is clear upon principle and authority. Franklin v. The Globe Insurance Company, 52, Mo. 461.

The circumstance that Sabin was in possession of appellant's mine, carrying on business in its name, and was in communication with its president, most certainly tends to prove the agency. In addition to this, he testified that he was agent to appellant, and, if his declarations during the continuance of the agency were drawn out, it was not for the purpose of establishing that fact, but to explain his dealings with the bank. It is not contended that an agency may be proved by the declarations of the alleged agent, but the fact being otherwise established, his declarations, made during the continuance of the agency, may be given in evidence to prove other facts. Rowell v. Kline, 44 Ind. 291. The theory advanced in the opinions heretofore pronounced, that appellant must be liable upon its ratification of Sabin's acts, if at all, was adopted upon the trial below.

It has never been claimed that, in virtue of his authority as superintendent of the mine, Sabin could borrow money in appellant's name, or that the promise of its president to pay the money obtained by Sabin would be binding upon appellant. But it was supposed that appellant, being advised of what had been done by its agent, in its name, and failing to disavow his authority within a reasonable time thereafter, might thereby manifest its assent to the transaction. It was not, however, contended that appellant would be estopped to deny its liability upon any equitable principle, but, merely, that its failure to respond to appellee's importunate demand would be evidence of assent for the consideration of the jury. To repeat the arguments and again refer to the authorities upon which this conclusion was founded, would serve no useful purpose. But it is said that the law was not thus stated to the jury, inasmuch as they were told that, if the defendant did disavow the acts of Sabin in borrowing the money from the plaintiff, it was incumbent on the...