
    [No. 5386.
    Decided March 24, 1905.]
    Albert O’Connor, Appellant, v. Sol. G. Simpson, Respondent.
      
    
    Contracts — Employment — Evidence —Sufficiency—Nonsuit. In an action for services performed at the special instance and request of the defendant, there is sufficient evidence to put defendant upon his proof, and it is error to grant a nonsuit, where the undisputed evidence for the plaintiff tended to show that he was employed hy one H as agent of the defendant to do the assessment work on mines in Alaska, owned hy a corporation of which defendant was president and a stockholder, the defendant agreeing to advance the money therefor, that the appellant had worked for a considerable time under such employment, and there was evidence showing the value of the services, especially where the trial court did not question the credibility of the witnesses (Root, X, dissenting).
    Appeal from a judgment of the superior court for King county, Morris, J., entered April 20, 1904, dismissing an action upon contract, at the close of plaintiff’s testimony, after a trial before the court, a jury being waived.
    Unversed.
    
      Cooley & Horan, for appellant.
    
      Richard Saxe Jones, for respondent.
    
      
       Reported in 79 Pac. 1102.
    
   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 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 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.

Root, J.

(dissenting) — I feel impelled to dissent from the conclusion announced in this case by the majority of the court. Hadley’s agency was created solely by a conversation which occurred at the stockholders meeting, where respondent was present as president and stockholder of the corporation. All there present were stockholders, and they were discussing corporation business. When respondent then and there told Hadley to employ men to do this work, it is quite clear to my mind that he (respondent) was speaking as an officer of said corporation, and not in his individual capacity. All present were there for the express purpose of considering and dealing with affairs of the corporation. The fact that the corporation treasury was empty, and that respondent agreed to advance the corporation, or for its benefit, the money to pay for this work, was a business matter between respondent and tbe corporation, but did not create any contractual relation between respondent (as an individual) and tbe men employed by Hadley. A man’s language must be interpreted in tbe light of bis surroundings, and witb special reference to tbe subject matter under discussion. Sitting in tbe meeting witb other stockholders and officers, and being there for the express purpose of dealing witb corporation matters, was it not tbe natural thing for him to have spoken as such officer, rather than as an individual intending to bind himself personally ? As such officer, be was speaking for tbe “corporation, whose officers and stockholders were then and there present. I think tbe trial court was justified in believing that respondent, in bis talk witb Hadley, was speaking for tbe corporation, and not as an individual intending to bind himself personally. The assembled stockholders having arranged among themselves that respondent was to furnish the means to pay for tbe work, then proceeded to hire men to do tbe work. Because, in doing tbe latter, their spokesman diappened to be tbe same officer (respondent) who bad agreed to furnish tbe money, makes it no less tbe act and obligation of tbe corporation..  