2 Jones and Spencer's Super. Ct. Rep. 304

HARRY C. HILL, Plaintiff, v. HARVEY SPENCER, Defendant.

In an action brought by a laborer or servant of a mining corporation against a stockholder of the same, to recover a debt due for services performed for such corporation, under section 18 of the act to authorize the formation of corporations for manufacturing, mining, and chemical purposes (Laws of 1848, chap. 40), it is necessary to prove a judgment against the company, and when proved it furnishes all that is necessary to be proved, so far as establishing the debt against the company for the recovery of which from the stockholder the plaintiff sues.

It is not necessary that the plaintiff should show that this debt for which he is suing was payable within one year from the time the debt was contracted, before he is entitled to introduce the judgment record.

One who was employed by and acted for a mining company, as an attorney with full and general powers, and also as a superintendent and commercial agent, is a laborer or servant under the statute. Hovey ®. Ten Broeck, 3 Robt. 316; Williamson v. Wadsworth, 49 Barb. 294; Vincent ®. Bamford, N. T. 3upr. Ot., vol. 33, p. 506 (1 Jones & 8. 506), reviewed and approved, and the ruling therein considered authority for the decision in this case.

Before Monell, Freedman, and Curtis, JJ.

Decided March 30, 1872.

The action is to recover of the defendant," as a stockholder in the American and Mexican Silver Mining Company, for services performed for the company, in the capacity, as alleged, of its servant.

The complaint alleged the recovery of a judgment against the company and the return of an execution unsatisfied.

At the trial before Mr. Justice Jones and a jury, the plaintiff offered the record of judgment against the company in evidence, which was objected to on the *305ground that, to hold a stockholder liable, it is not enough to show that a judgment has been recovered against the company, but before he can introduce the record of such judgment he must show that this debt he was suing for was payable within one year from the time the debt was contracted. Objection overruled and record admitted as evidence that judgment has been recovered for so much money, for services rendered by the plaintiff to the company.

The defendant excepted.

The plaintiff proved a written agreement between himself and the company, made May 30, 1863, which is as follows•

“ This is to certify that Mr. Harry 0. Hill has been appointed by the American and Mexican Silver Mining Company, commercial agent for the management of their commercial and financial affairs in California and Mexico. . . .”

The plaintiff then testified that under this agreement he went to California, thence to Mexico. That while in California or Mexico, he received from the company the following paper :—

“ Know all men by these presents, that the American and Mexican Silver Mining Company, a corporation formed and existing under the general mining laws of the State of Hew York, U. S., and whose mines are located in Setentrion, State of Chihuahua, Mexico, do hereby ordain, constitute and appoint Harry C. Hill, now of Mexico, their true and lawful attorney for them and in their name, to take possession of their mines and mining property belonging to them in Mexico, and to manage and conduct their lousiness and affairs in that country the same, in all respecté, as the said company could do if located at the place, and they do hereby ratify and confirm what their said attorney shall lawfully do in the premises.

“ In witness whereof the company have caused this *306instrument to be signed and executed in duplicate by their president and secretary, and the seal of the company to be affixed, this eleventh day. of January, Anno Domini eighteen hundred and sixty-four.

Í Seal of the Am. ) Lyman W. Gilbert, Pres’t. ,, j and Mex. Sil. > W. Hart Smith, Sec’y.” ( Mining Co.” )

That in addition to the written agreements be made a verbal agreement with the treasurer of the company, which was confirmed by the company by the following resolution:—

“At a meeting of the Board of Directors of the American and Mexican Silver Mining Company held this day, Mr. Hickok reported that he had arranged with Harry G. Hill to continue in the company's employ at the mines in Mexico for one year from June 1, 1864, at a salary of five thousand dollars, and on motion it was voted to ratify and approve said arrangement, and Mr. Hickok was authorized to notify Mr. Hill of tñe same.”

The plaintiff then testified as follows :—

Q. State whether or not you performed any duties in the employ of the company under the appointments and agreement you have testified to ? If so, state what those duties were.

“A. I did perform duties under said appointments and agreement, all that were required of me. I exercised a general supervision of the property there and of all their affairs, employment and management of the men, purchase of supplies, and of all the duties of a general superintendent.

“Q. State whether or not you had anything to do with the accounts of the company kept at the mines, if there were any such ? and if so, what ?

“ A. Yes, sir. For a time I kept the accounts; until Mr. Hickok came there.

*307‘‘ Q. Who attended to the payment of the hands employed at the mines %

“A. Myself and Mr. Willard.

‘‘Q. State whether or not you were ever obliged to travel for the company. If so, for what purpose %

‘‘ A. I was obliged to travel for the company, to re- < ceive, forward, and purchase machinery, supplies, &c., and also to perfect the title of the company to the mines.

‘‘ Q. Where were these mines of the company situated ? How many were there of them ?

A. They were situated in the Canton of Matamoras, in the State of Chihuahua, in Mexico. The mining settlement owned by the company was called Setentrion. There were three mines. I resided in Sententrion at the hacienda, which was a mile from one mine, three miles from another, and about four miles from another.

Q. How many men were employed under you in the service of the company at the mines while you were there, and about what were they employed ?

" A. There were from a dozen to seventy-five men employed at different times in mining, making roads, getting out timber, building houses, &c.”

There were several objections to the introduction of evidence, which appear in the opinion.

A motion was made to dismiss the complaint, which was denied, and the defendant excepted.

The court directed a verdict for the plaintiff, and sent the exceptions to the general term, suspending the judgment.

Prichard, Choate & Smith, for plaintiff.

Duncan Smith, of counsel.

Mr. John H. Platt, for defendant.

Mr. John Slosson, of counsel.

*308By the Court.—Monell, J.

Section 18 of the act to authorize the foundation of corporations for manufacturing, mining, mechanical, and chemical purposes (Laws, 1848, chap. 40), provides that:

i “ The stockholders of any company organized under the provisions of this act, shall be, jointly and severally, individually, liable for all debts that may be due, and owing to all their laborers, servants and apprentices, for services performed for such corporation,’.’ and the chief question presented, is whether the plaintiff was a servant of the company, within the fair intent and purpose of the statute.

The facts in this case are very similar to those in Hovey v. Ten Broeck, 3 Robt. 316, where we held that a person occupying the position, and performing the duty, of a general superintendent at the mines, was a servant within the meaning of the statute.

In the case at bar, the plaintiff was employed by the company to manage their commercial and financial affairs in California and Mexico, with authority to conduct their business in all respects as the company would. Under that appointment the plaintiff performed all the duties required of him. He exercised a general supervision of the property, and of all the affairs of the company; employed and managed the men; purchased supplies and performed all the duties of a general superintendent. He kept the accounts at the mines, and attended to the payment of the men. He also traveled for the company to receive, forward and purchase machinery and supplies. There were under him from twelve to seventy-five men, engaged in mining, making roads, getting out timber and building houses.

The only difference in the character of the service performed by the plaintiff, and such as was performed by Hovey (Hovey v. Ten Broeck, sup.), was that Hovey sometimes worTced with the .men. But how *309often or how long he worked with the men, does not appear, and it is proper to presume, from the extent of the other service performed, that the manual service was only a very small part of the service for which he recovered.

The difference alluded to, I do not think sufficient to deprive the case of Hovey of its authority. The general character of the services in the cases were alike, and were alike of a nature to bring them within the intent and purpose of the statute.

The same difference, in a smaller degree, in the character of the service, is found in the very recent case, in this court, of Vincent v. Bamford, 33 N. Y. Sup. Ct. 566 (1 Jones & Spencer). But no such difference exists in Williamson v. Wadsworth, 49 Barb. 294, where the plaintiff was the civil engineer and traveling agent” of the company, and was allowed tore-cover as for services performed by a servant.

As this court has already held (Vincent v. Bamford, sup.) that Hovey v. Broeck is not overruled by Coffin v. Reynolds (37 N. Y. 642), we are authorized to foEow that case and sustain the direction of the learned justice at the trial.

No point was made by the defendant on his objection to the judgment roll. It was necessary to prove the judgment against the company, and when proved, it furnished all that the defendant claimed should have been previously proved.

The objection to the letters from the president of the company to the plaintiff’s brother, was properly disposed of. They do> not appear to contain anything prejudicial to the defendant, or serviceable to the plaintiff; but as the. letters were directed by the writer to be sent to the plaintiff, they were competent for what they were worth. Nor was the plaintiff bound to produce and read the letter referred to in the letter of -Tuly 31. The defendant could have given it in evidence, if *310he could have got it, or, having laid the proper foundation, he could have proved its contents. Its non-production by the plaintiff was not a sufficient reason for excluding the other letter.

It was objected for the first time on the argument of these exceptions, that as there was no evidence of any agreement by the company to pay for the services of the plaintiff after the expiration of the year commencing June 1, 1864, and as the claim in the suit was for services from June 1,1865, to May 23,1866, there could be no recovery against the defendant.

The objection comes too late. It should have been made at the trial, when the deficient evidence might z have been' furnished (Shaffer v. Guest, 6 Robt. 264; Stewart v. Smith, 14 Abb. 75 ; Colwell v. Lawrence, 24 How. Pr. 324).

Being unable to discover any error committed at the trial, I am of opinion that the exceptions should be overruled and judgment ordered for the plaintiff on the verdict.

Hill v. Spencer
2 Jones and Spencer's Super. Ct. Rep. 304

Case Details

Hill v. Spencer
Decision Date
Mar 30, 1872

2 Jones and Spencer's Super. Ct. Rep. 304

New York



Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!