Weed v. Idaho Copper Co.

• Decision Date: 08 April 1932
• Docket Number: 5735
• Citation: 51 Idaho 737,10 P.2d 613
• Parties: WALTER HARVEY WEED, Respondent, v. IDAHO COPPER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

10 P.2d 613

51 Idaho 737

WALTER HARVEY WEED, Respondent, v. IDAHO COPPER COMPANY, a Corporation, Appellant

No. 5735

Supreme Court of Idaho

April 8, 1932

MASTER AND SERVANT - ACTION FOR WAGES - CONTRACTS-PERFORMANCE-PLEADING.

1. In action for unpaid salary, defendant's answer held to admit employment contract was made substantially as pleaded by plaintiff.

2. Admission made in pleadings is binding on party making it.

3. In employee's action for reimbursement for expenses during employment, whether alleged expenditures were reasonably made in defendant's interest while employee was in defendant's employment held for jury.

4. In action for unpaid salary, admission of evidence showing salaries of other officers of defendant corporation held not prejudicial to defendant.

5. In action for unpaid salary, instruction allowing recovery at monthly rate held authorized, under facts, as against contention that employment contract was indivisible contract for year.

6. In action for unpaid salary, admitting plaintiff's testimony that he saw, in defendant corporation's office, unsigned salary checks made out in his favor, held not erroneous under facts.

7. In action for unpaid salary, based upon alleged performance of employment contract, instruction that, if employee is permitted to remain after employer knows of derelictions, em- ployee can recover value of his services, held authorized by evidence and not erroneous as against contention that one averring performance cannot recover under proof of waiver or excuse for nonperformance.

8. Employer should be held to terms of employment contract equally with employee.

9. Contract is to be given effect according to its clear and unambiguous terms, and court may not substitute or write new contract for parties.

10. Conflicts in evidence were for jury.

11. Allegation that contract was "duly performed" is legal conclusion, permitted by statute, in lieu of pleading facts constituting performance, and means that contract has been performed in accordance with what is right, required suitable or law (C. S., sec. 6712).

12. Recovery is allowable on contract for purely personal services on proof of substantial performance (C. S., sec 6712).

13. Plea that contract for purely personal services was "duly performed" will support verdict, or finding of substantial performance (C. S., sec. 6712).

14. In action for unpaid salary, instruction requiring proof that plaintiff fully performed employment contract held erroneous.

15. Party may not assign as error inconsistency in instructions produced by giving instruction he requested.

16. Instructing on substantial performance of employment contract without defining "substantial performance," absent request for definition, held not error.

17. "Substantial performance" of employment contract authorizing recovery thereon, must be such performance as to meet requirements of reasonable person under like circumstances.

18. In action for unpaid salary balance and reimbursement for expenses paid out during employment, evidence sustained judgment for plaintiff.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Ralph W. Adair, Trial Judge.

Action by Walter Harvey Weed against the Idaho Copper Company for an unpaid salary balance and for reimbursement for expenses paid out during his employment. Judgment for plaintiff. Affirmed as modified.

Judgment affirmed; costs awarded to respondent. Petition for rehearing denied.

Carey H. Nixon, for Appellant.

It is a fundamental rule of construction that the intention of the parties is the criterion upon which rests the determination of their respective liabilities, in regard to all contracts. (Taylor v. Fluharty, 35 Idaho 705, at 714, 208 P. 866; Tilden v. Hubbard, 25 Idaho 677, at 685, 138 P. 1133; D. M. Ferry & Co. v. Smith, 36 Idaho 67, at 73, 209 P. 1066; Twin Falls Orchard Fruit Co. v. Salsbury, 20 Idaho 110, at 119, 117 P. 118; Wallace Bank & Trust Co. v. First Nat. Bank, 40 Idaho 712, at 719, 50 A. L. R. 316, 237 P. 284.)

The object and purpose of the contract may well be taken into consideration in arriving at a correct understanding of what the parties had in mind when they used the words, the meaning of which is in controversy. (Clarke v. Blackfoot Water Works, Ltd., 39 Idaho 304, at 311, 228 P. 326; Tilden v. Hubbard, 25 Idaho 677, at 685, 138 P. 1133; Shoemaker v. Acker, 116 Cal. 239, 48 P. 62, at 63; 3 Williston on Contracts, sec. 1968, p. 3345; Dewar v. Taylor, 43 Idaho 111, 249 P. 773.)

The proper construction of words in a particular contract must depend frequently on the circumstances existing when the contract was made or then within the contemplation of the parties. (3 Williston on Contracts, sec. 1968, p. 3345; Mark P. Miller Co. v. Butterfield-Elder Impl. Co., 32 Idaho 265, at 268, 181 P. 703; Shoemaker v. Acker, supra.)

A contract for a year's service is not split up into twelve contracts by a provision that the employee is entitled to his pay in monthly installments. (Specifications of Error Nos. 12 and 18; 2 Williston on Contracts, sec. 861, p. 1648; 6 R. C. L., sec. 345, p. 972; 3 Elliott on Contracts, sec. 2102, pp. 294, 296; Mathieson Alkali Works v. Mathieson, 150 F. 241, at p. 252, 80 C. C. A. 129.)

George Donart, for Respondent.

Substantial compliance with the terms of a contract is all that is required of an employee to entitle him to his compensation. Strict compliance is not a prerequisite. (39 C. J., p. 121; 13 C. J., p. 690; City of St. Charles v. Stookey, 154 F. 772, 85 C. C. A. 494; Omaha Water Co. v. Omaha, 156 F. 922, 85 C. C. A. 54; Lyden v. Spohn-Patrick Co., 155 Cal. 177, 100 P. 236; Lusk Lumber Co. v. Independent Producers Consolidated, 35 Wyo. 381, 249 P. 790.)

A party cannot complain of the failure of the trial court to instruct the jury on every possible phase of the law or with respect to the meaning of words contained in a given instruction unless such party request such instructions. (14 R. C. L., subject "Instructions," sec. 56, p. 795; 38 Cyc. 1694-1696.)

The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect. (Bank of Troy v. Linford, 4 Idaho 677, 43 P. 680; Wheeler v. Commercial Bank of Moscow, 5 Idaho 15, 46 P. 830; Ada County Farmers' Irr. Co. v. Farmers' Canal Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; Reynolds v. Corbus, 7 Idaho 481, 63 P. 884.)

GIVENS, J. Lee, C. J., Budge and Leeper, JJ., and Rice, D. J., concur. Varian, J., did not participate.

OPINION

GIVENS, J.

Respondent 's first cause of action is for an unpaid salary balance for personal services, and the second for reimbursement for expenses incurred by him in such employment. The complaint alleged in substance respondent's employment at a yearly salary of $ 15,000, or $ 1,250 per month, and a balance of $ 7,500 thereof, due and unpaid, and that plaintiff had "duly complied with the terms of the contract." Appellant denied that respondent had performed the contract; denied he was entitled to reimbursement; and while the answer denied employment as alleged by respondent, the affirmative portion of the answer sets up at length and in substance the terms of a contract, Plaintiff's Exhibit "A," with respect to plaintiff's employment, and also portions of the minutes of appellant corporation, the pertinency of which appear as we proceed.

Three principal items of money are involved: 1. The claimed salary balance of $ 7,500; 2. An item of $ 400 respondent contends he paid to one H. G. Mitchell, a mining engineer of Salt Lake City, for a report made by Mitchell on certain features of the mining properties hereinafter described; and 3. The expense account of respondent.

The verdict was for the full amount asked, less $ 400, which respondent opines the jury deducted on the theory that he was not entitled thereto because paid to Mitchell by appellant, not respondent. Appellant contends, on the other hand, that the jury deducted it from the salary claimed by respondent. Under either view appellant was not prejudiced by the deduction; hence it is unnecessary to further consider or discuss this $ 400.

The Idaho Copper Company, originally called the Idaho Copper Company, Limited, owned the Red Ledge group, Red Ledge West Extension group, and the Mammoth group of lode mining claims in the Seven Devils District, Adams county, Idaho. The Idaho Copper Corporation, an entirely different organization, owned the Iron Dyke property and the South Peacock, in the Seven Devils District of Idaho and Oregon.

April 7, 1926, a contract, Plaintiff's Exhibit "A," was entered into between Cooley Butler, individually, and as trustee for certain parties, including O. H. Griggs, who owned the controlling interest in the Idaho Copper Company and Frank Silva, brother-in-law of George Graham Rice, who, with his associates, owned a controlling interest in the Idaho Copper Corporation, it being conceded that Silva was a "dummy" and George Graham Rice was the real party in interest, and represented Rice in the contract, the contract being generally for the purposes, as expressed in the minutes of appellant corporation, Plaintiff's Exhibit "C," as follows: "relating to the exchange of stock in the Idaho Copper Company, Limited, for all outstanding stock of the Idaho Copper Corporation, and the merger of the two companies, the raising of funds by the sale of treasury stock of Idaho Copper Company, Limited, for the opening up, development, and operation of its properties, the pooling of the stock owned by the parties of the first part, defining the methods of...