Gregory Consolidated Mining Company v. Starr

E. W. Toole and ''Wm. Wallace, Jr.'', for plaintiffs in error.

W. F. Sanders, for defendant in error.

BREWER, J.

On July 28, 1883, the AEtna Iron-Works of San Francisco entered into a contract with the Gregory Consolidated Mining Company to build and equip for it at Gregory, mont., a complete concentrating mill of specified capacity. The contract provided that the mill 'shall be completed and delivered in perfect running order within four months from date, provided the lumber required to be used in constructing the building and placing the machiney therein is delivered on the ground at Gregory aforesaid * * * within forty days after the receipt of the bill for said lumber by H. W. Child, representing said party of the second part.' In consideration of this the mining company agreed to pay $20,000 upon receipt at Helena, Mont., of a bill of lading showing a shipment of the machinery from San Francisco, and the sum of $30,000 in three equal installments, 'in thirty, sixty, and ninety days from the acceptance, upon completion of said mill by said party of the second part.' The $20,000 was paid on receipt of the bill of lading; but the three installments of $10,000 each were none of them paid, and these actions were brought to recover those installments. No. 357 on our docket, though later in number, was the first action commenced in the district court of Montana, and was to recover the first installment. No. 356 was commenced some months thereafter, and was to recover the lst two installments. It was commenced later, was tried later, and judgment was rendered at a later day; but somehow it occupies an earlier position on our docket. The difference between the two cases are these: No. 356 was tried by a jury; No. 357 by the court without a jury. In No. 256 a foreclosure of a mechanic's lien was sought, but not in 357. The answer in the suit for the second and third installments, No. 356, claimed damages for the failure to complete the mill within the time specified in the contract. With these exceptions the cases are substantially identical. The testimony in the two cases was practically the same, being mainly by depositions. Both cases are brought to this court by writ of error. As one of them, No. 357, was tried by the court without a jury, it could only be brought here by appeal. Hecht v. Boughton, 105 U.S. 235; act of April 7, 1874, (18 St. p. 27, c. 80,) § 2. We have, therefore, no jurisdiction over this case. As to both of them, it may also be observed that the requirements of section 997, Rev. St., and rule 21 of this court, as to the assignment and specification of errors, have been ignored. The only suggestion in respect to error presented by either record is that made in the statement of appeal from the district to the supreme court of the territory; and the briefs filed in this court by the plaintiff in error were the same as were filed in the supreme court of the territory without compliance with rule 21, and with even inaccurate references to the pages of the record on which the specifications in the statement of appeal to the supreme court of the territory are found. We could properly dispose of these cases on the ground of this disregard of the requirements of the statute and rules; but 10 per cent. damages are asked under clause 2 of rule 23, and therefore we pass to inquire what are the real merits of this controversy, and what are the errors which in any way are suggested by the record. There is no doubt as to the sufficiency of the complaints. Indeed, no objection was made to them. Upon the general merits of the case, it may be observed that the answers first denied the transfer from the AEtna Iron-Works to plaintiff. One witness, himself interested in the iron-works, testified to the transfer; and there was no testimony even tending to gainsay this. The answers also denied the making of the contract. The assistant general manager of the mining company was called as a witness, identified the contract, and testified to its execution by himself for the mining company. The testimony is undisputed, not only that the mill was built and equipped, but also that it was accepted and operated by the defendant. A letter from Prof. Hesse was in evidence, signed by him as superintendent of the Gregory smelter, informing the iron-works of the completion of the contract; his entire satisfaction with the work done; that the concentrator was of larger capacity than that called for by the contract; and that the building was substantially and well built, and the machinery of first-class workmanship. The party who represented the iron-works in this transaction testified that Child, the assistant general manager of the mining company, told him he must please Hesse in the construction of the mill; and that, if the mill was acceptable to Hesse, it would be to the company. Hesse testified that he showed his letter of acceptance to Child, and that he made no objection to it, and that he accepted it on April 18, 1884; and Child, the assistant general manager, himself, when called as a witness, testified that Hesse was at the time of the building of the mill his representative at the works. Under these circumstances, it does not admit of doubt that the judgments were right, and that substantial justice was done thereby.