United States Smelting, Refining & Mining Exploration Co. v. Wallapai Mining & Development Co.

Decision Date10 December 1924
Docket NumberCivil 2154
PartiesUNITED STATES SMELTING, REFINING AND MINING EXPLORATION COMPANY, a Corporation, and UNITED STATES SMELTING, REFINING AND MINING COMPANY, a Corporation, Appellants, v. WALLAPAI MINING AND DEVELOPMENT COMPANY, a Corporation, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Mohave. E. Elmo Bollinger, Judge. Judgment reversed and cause remanded, with directions to dismiss complaint.

Mr Carl G. Krook and Mr. Alfred Sutro, for Appellants.

Mr. C W. Herndon and Mr. Frank Pierce and Mr. R. L. Alderman, for Appellee.

OPINION

ROSS, J.

The Wallapai Mining & Development Company, as plaintiff recovered judgment against the defendants United States Smelting, Refining & Mining Exploration Company and the United States Smelting, Refining & Mining Company corporations, for the sum of $20,000, and the latter appeal.

We will designate the Wallapai Company as plaintiff and the two defendants as defendants, or as the Exploration Company and the Mining Company.

Briefly, plaintiff states its cause of action as follows: That on December 14, 1909, it was the owner of mining claims known as the Tennessee group of mines, situate in Mohave county, Arizona; that on that date it granted to A. P. Anderson the sole and exclusive right and option to purchase at any time within ten years, upon the terms therein stated, said group of mines, together with all the personal property, consisting of buildings, machinery, and improvements; that said Anderson (who was also made a party defendant but dismissed, not having been served with process) was in the making of the contract "acting for and on behalf of the said defendants, . . . and the said defendants then and there pursuant to the terms of said agreement entered into possession of said premises and control of the aforesaid properties, and worked and developed the same and extracted and shipped ores therefrom"; that one of the covenants of the agreement was that Anderson, or his assigns, or the parties for whom he was acting, if property was surrendered, would leave in good repair and working order, reasonable wear and tear thereof excepted, all tools, machinery, buildings, appliances, and personal property situate thereon belonging to plaintiff; that on December 14, 1917, said mines and premises were surrendered to plaintiff by defendants, but that defendants failed to keep said covenant and did not leave the tools, machinery, buildings, appliances and personal property, but on the contrary destroyed, removed and converted such property (enumerating it), to plaintiff's damage in the sum of $22,665.

The defendants filed separate identical answers denying the allegations of the complaint. The case was tried before a jury, whose verdict was in favor of plaintiff.

There are a number of assignments, but as we view the case it will not be necessary to consider them all. It is contended by the defendants that the verdict and judgment are not supported by the evidence, and that the court erred in the admission, over their objection, of certain evidence. Our attention will be confined to these two assignments.

The written agreement, declared on as breached, on its face is between plaintiff as party of the first part and Anderson as party of the second part, and contains no words indicating or suggesting that the latter was acting for anyone except himself. It was therefore incumbent upon plaintiff to establish by competent evidence its allegation that Anderson in entering into said contract was the agent of the defendant companies, duly authorized to act for them. This the plaintiff did not do. At the time of the making of the contract the Exploration Company was not in esse. It was not organized until February 24, 1912, over two years after date of contract. So far as this defendant is concerned, it was impossible for Anderson to have acted for it in the execution of contract. It is inconceivable that there should be an agent without a principal. The evidence upon this point, as it affects the Mining Company, is that Anderson was its general manager or Pacific Coast manager at the time of entering into contract, and for a long time thereafter. But this of itself proves nothing. Over objection, many letters written by Anderson and other employees of the Exploration Company and the Mining Company, bearing the letter-heads of defendant Exploration Company, were introduced, not that their contents had any bearing upon the issue of agency, but upon the theory that the letter-heads themselves were evidence of Anderson's agency. There were also two letters on the letter-heads of the Mining Company introduced, but they were written subsequent to December 14, 1917, the date the Tennessee group of mines were surrendered to the plaintiff.

These letter-heads were not competent evidence of such agency and the court erred in admitting them for that purpose. The rule is well established, not only in this state but elsewhere, that the declarations of an alleged agent are not evidence of the fact of agency, nor the extent thereof.

"The agency must be proved by other evidence before his (the agent's) acts and statements can be shown against the principal. At best such declarations are mere hearsay. The rule applies equally to oral statements of the agent and the written statements, contained in letters, letter-heads, receipts, or other documents implying, admitting, or claiming authority to act as agent in the negotiations with the third person." 31 Cyc. 1652.

See, also, Navajo-Apache Bank & Trust Co. v. Willis, 21 Ariz. 610, 193 P. 297; Franklin v. Havalena Mining Co., 18 Ariz. 201, 157 P. 986; Petterson v. Stockton etc. R. Co., 134 Cal. 244, 66 P. 304; Smith v. Liverpool etc. Co., 107 Cal. 432, 40 P. 540; Blanke Tea & Coffee Co. v. Rees Printing Co., 70 Neb. 510, 97 N.W. 627; Klumpp et al. v. American Hardware Mfg. Co., 50 Misc. 662, 99 N.Y.S. 326; Heimerdinger v. Lehigh Val. R. Co., 26 Misc. 374, 56 N.Y.S. 188.

The allegation of the complaint that the defendants, Exploration Company and Mining Company, "then and there pursuant to the terms of said agreement entered into possession of said premises and control of the aforesaid properties, and worked and developed the same and extracted and shipped ores therefrom," has no support in the evidence. As we have stated, the Exploration Company was not organized until more than two years after the making of said contract. It was not an entity and could not, by agent or otherwise, take possession of the Tennessee group of mines work and operate the same. It is undisputed that six days before Anderson entered into contract with plaintiff there was organized a corporation known as the Needles Mining & Smelting Company, of which Anderson was the consulting engineer, and that it was this company that "then and there" took possession of the Tennessee group of mines, worked and developed them, extracted and shipped ores therefrom; that Anderson and wife on September 11, 1910, assigned his contract to the said the Needles Company; that thereafter, on August 26, 1910, Anderson and wife quitclaimed the Tennessee group of mines to said company;...

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