O'Connor v. Simpson

Crow, J. This action was commenced by appellant, Albert O’Connor, against respondent, Sol. G. Simpson, to recover a sum alleged to be due for labor performed in doing certain assessment work, on certain mining claims on Tuttle Creek, in the District of Alaska, within the Arctic Circle, which claims were the property of the Cutter Bear Mining Company, a corporation. It is claimed by appellant that, at a meeting of the stockholders of said company, held in the office of respondent, in Seattle, Washington, it [626] appeared that said company did not have available funds with which to prosecute said assessment work, and that thereupon respondent, who was a stockholder and president of said company, directed and authorized one Hadley, another stockholder, to employ two men, and one Burkman to also employ two men, and to proceed with them to the properties via Nome, Alaska, and do the work, and that he, respondent, would furnish all supplies, would pay the expenses of the men from Nome to the mines and return, and would also pay their wages. It is claimed that, in pursuance of this authority, Hadley, as agent of respondent, employed appellant, who went to the Arctic Circle, and, with others who were under like employment, did the assessment work. The complaint alleges that the work was done by appellant at the special instance and request of respondent, who agreed to pay the reasonable value thereof, alleged to be $100. The answer is a general denial. Trial was had before the court without a jury. Appellant, having introduced his evidence, rested. Thereupon respondent moved for a nonsuit on two grounds: first, that there was no proof of any hiring of appellant on behalf of respondent; second, that there was no evidence on which the court could find any measure of recovery. The motion for nonsuit was granted, judgment was entered dismissing the action, and this appeal is taken. We have carefully examined all of the evidence-, as disclosed by the statement of facts, and are of the opinion that the court erred in granting the motion and dismissing the action. The evidence is too voluminous to repeat here; but we will say there was undisputed testimony of a number of witnesses tending to show that Hadley was the agent of respondent; that, as such agent, he employed appellant; that appellant worked for a considerable period of time under such employment; and we also think there was [627] competent evidence showing the value of his services. The learned trial judge-, in announcing his reasons for granting the- nonsuit, did not base the same on any suggestion whatever of want of credibility on the part of the witnesses; hut, accepting the statement of the- witnesses as true, ieemed to regard the evidence as insufficient to make a case. The question here- is not whether the evidence submitted was sufficient to have required the case to be submitted to a jury, had this been a jury trial, but whether it was clearly sufficient to entitle appellant to judgment, being undisputed and uncontradicted. We think that, in the absence of any evidence in rebuttal, appellant established his right to recover, and that he made a case sufficient to put respondent upon proof. The judgment of the superior court is reversed, and the cause remanded, with directions to grant a new trial. Mount, C. J., Rudkin, and Dunbar, JJ., concur. Fullerton and Hadley, JJ., took no part.