Salt Lake Foundry & Machine Co. v. Mammoth Mining Co.

Blackburn, J. - This action was originaLly brought by George TV. Taylor et al., as plaintiffs, to foreclose a statutory lien against tbe defendant company. The respondent was a defendant, as a bolder of another lien. Tbe case of tbe original plaintiffs having been disposed of, tbe respondent is, in effect, plaintiff. It filed a cross-complaint for its lien, tbe appel 352 lant put in an answer, and the cause was beard by the court below without a jury, and jndgment rendered for the respondent, from which judgment this appeal is taken. The cross-complaint alleges that the respondent, a corporation, delivered to the appellant, a corporation, castings and did work and labor in constructing refineries, furnaces, etc., at the request of the appellant, on its mining and milling property. That the materials were furnished, and the work and labor done, on the property of the appellant, and the amount and value thereof is not denied, but it is denied that this was done at the request of the appellant. The evidence tends to prove that the materials and work were furnished at the request of one Bowers, who was a director and secretary of the appellant company, and one Johnstone, represented to be the general manager of the company; that the mining operations and the work, when this work was done, and their materials were furnished, were carried in the name of the appellant company, the pay-rolls of the men, and the regulations for the conduct of the work were in its name, and the proceeds of the mine were transferred to its credit, and the material furnished and labor done by the respondent were charged to it, and the whole proceedings in working the mine and making-improvements were carried on, to all appearances, in the name and by the authority of the appellant company. Its president was sometimes there. Its secretary and office was there, and one or two of its directors resided there. We think there was, if not a preponderance of evidence, enough to justify the court below in finding that these materials were furnished and this labor performed at the request of the appellant. But the contention of the appellant is that it is not liable for the labor done and material furnished by the respondent, because it had a contract with another party to have this work done and these materials furnished, and pay for the same, and the contract, was with Bowers, a director, stockholder and secretary of appellant company, and that the contract was between him and certain stockholders of the appellant company, and consented to by it. If this was a private agreement between certain stockholders of appellant as to who should pay for im 353 provements made in its property, made in its name and for its benefit, it will not avail to defeat the claim of the respondent, unless notice of this agreement was given to the respondent before the material was furnished and labor done, that it would not be liable for these materials and labor, although done in its name. On this point the evidence is conflicting, and the court below found for the respondent, or it could not have given judgment in its favor. Ve think the evidence fully justifies his finding. The errors assigned in reference to the admission of testimony are not available in a case in equity, for the chancellor is supposed to act only on proper evidence. There is no question of law involved — only questions of fact; and, if the proper evidence justifies the decree, the judgment ought to be affirmed, and we think it does. Decree affirmed. Zane, C. J., and HendeRSOn, J., and Andeeson, J., concurred.