Post v. Pearson.

This is an action brought in an inferior court of Dakota territory by Jonh B. Pearson against Alvin W. Whitney and Morton E. Post, copartners under the name of the Keets Mining Company. Annexed to the complaint was a copy of a contract under seal, entitled 'Memorandum of an agreement made and entered into this sixteenth day of July, 1877, at Central City, Dakota, by and between A. W. Whitney, superintendent of the Keets Mining Company, parties of the first part, and J. B. Pearson, party of the second part;' and by which 'the said parties of the first part' agree to deliver at Pearson's mill in Central City gold-bearing ore from the Keets mine from time to time, in quantities sufficient to constantly supply the working capacity of the mill of about 30 tons daily; and also agree to pay the sum of nine dollars for each ton crushed and milled; and Pearson agrees to run his mill constantly upon that ore for a term of 90 days from the date of the contract; and which is signed and sealed as follows:

'A. W. WHITNEY, [Seal.]

'Supt. Keets Mining Co. [Seal.]

'JOHN B. PEARSON, [Seal.]' The complaint set forth the terms of the contract, and alleged the plaintiff's performance and readiness to perform, and the defendants' neglect and refusal to deliver ore as agreed, or to pay for crushing and milling what they did deliver. The defendant Post demurred to the complaint, because he was not shown to be a party to the contract sued on, and because sufficient facts were not stated to constitute a cause of action against him. The inferior court sustained the demurrer, and gave the plaintiff leave to amend his complaint. The plaintiff then filed an amended complaint, not alleging the contract to have been in writing, but setting forth its terms, and alleging the other facts substantially as in the original complaint. The defendants answered; Post denying all the allegations of the amended complaint, and Whitney admitting the making of the contract, and denying the other allegations.

At the trial the written contract was admitted in evidence without objection. It appeared that it was made by the parties thereto, and that Whitney, in making it, acted in behalf and for the benefit of the Keets Mining Company, of which he was the superintendent, and was understood by the plaintiff so to act; and that Whitney, as such superintendent, afterwards broke the contract to the damage of the plaintiff. The plaintiff, against the objection of Post, and for the purpose of showing that Post was one of the real parties in interest and a participant in the results of the contract, and that Whitney acted merely as the agent of himself and Post as principals, was permitted to introduce oral evidence that Post was an owner of the Keets mine, and a copartner with Whitney, under the name of the Keets Mining Company, in the business of working the mine and having the ore from it crushed, and as such copartner received a large portion of the proceeds of the contract, knowing whence they came. The court also declined to rule and instruct the jury, as Post requested, that the order sustaining his demurrer to original complaint prevented a recovery against him in this action. Post alleged exceptions to both rulings, and the jury returned a verdict for the plaintiff, upon which judgment was rendered. On appeal, that judgment was affirmed by the supreme court of the territory. See 2 Dak. 220; [S.C.. 9 N. W. Rep. 684.] Post sued out this writ of error.

R. T. Merrick and M. F. Morris, for plaintiff in error.

[Argument of Counsel from pages 420-421 intentionally omitted]

J. W. Smith, for defendant in error.

GRAY, J.