United States Smelting, Refining & Mining Exploration Co. v. Wallapai Mining & Development Co., Civil 2154

• Court: Supreme Court of Arizona
• Writing for the Court: ROSS, J.
• Citation: 230 P. 1109,27 Ariz. 126
• Docket Number: Civil 2154
• Decision Date: 10 December 1924
• Parties: UNITED 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

230 P. 1109

27 Ariz. 126

UNITED 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

Civil No. 2154

Supreme Court of Arizona

December 10, 1924

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

[27 Ariz. 128] 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 [230 P. 1110] 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, [27 Ariz. 129] 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 [27 Ariz. 130] 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,...