AMERICAN SMELTING AND REFINING COMPANY, a Corporation, Appellant,
SWISSHELM GOLD SILVER COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Evo De Concini, Judge.
Judgment reversed with instructions.
Mr. Ben C. Hill, for Appellant.
Mr. Oliver J. Laubscher, and Mr. Paul M. Roca, for Appellee.
LaPrade, J. Stanford, C. J., and Morgan, J., concur.
[63 Ariz. 205] Appellee brought this action against appellant American Smelting and Refining Company to recover the sum of $ 1,904.27, the alleged value of four carloads of ore purchased by the smelting company at its El Paso plant from one Cyrus Farwell, who, the appellee alleged, had wrongfully removed the ore from its mining claims in Cochise County. The appellant in its answer set up numerous defenses. Among others, it alleged that the plaintiff below had received full payment for its ore from one Cyrus Farwell, and was estopped from making the claim as set forth by virtue of a certain judgment of the Superior Court of Cochise County. The pleadings in the case at bar and the rulings thereon are somewhat involved and confusing and our disposition of the case makes it unnecessary to recite them. The correct disposition to be made of the defense of payment
and the effect of the Cochise County judgment will, in our opinion, dispose of this appeal.
The record of the Cochise County case discloses that Farwell was employed as watchman by Swisshelm upon nine unpatented mining claims in Cochise County. Farwell, after obtaining legal advice, determined that the Swisshelm claims were open for relocation because of the failure to perform the annual [63 Ariz. 206] assessment work, whereupon he attempted to relocate four of the claims. Subsequently, he shipped from these claims the four carloads of ore in question. Farwell then brought suit to quiet title to these four claims, naming as defendant Ben Heney, who was then or had been president of the Swisshelm Corporation. Swisshelm then intervened in this quiet title action and filed an answer and cross-complaint. In its answer it denied that the plaintiff Farwell had discovered mineral in place; denied that said lands were open to mineral location and unoccupied. It alleged that it was the owner of the claims; that at the time of the pretended location by Farwell he was employed as watchman on the claims; that his employment was attributable to its assessment work; and, that as a consequence said mineral lands were not open to relocation. It further alleged that the attempted relocations by Farwell were wrongful and unlawful; that his possession as a pretended locator was unlawful; and, that he "did wrongfully and unlawfully remove from said premises a three-thousand-dollar compressor, hoist cable, tools, and other mining equipment" belonging to the cross-complainant. The prayer for relief was (1) for immediate possession, (2) that it be adjudged the lawful owner, and (3) for a restraining order, and for return of the machinery, tools, etc.
By way of answer and cross-complaint, plaintiff Farwell admitted that he had taken its compressor and was holding the same as security for payment of back wages which he claimed Swisshelm owed him. He denied the allegations with reference to taking any other property. In his counterclaim, he alleged that he had been employed by Swisshelm as caretaker, and "that said defendants Ben Heney and/or Swisshelm Gold Silver Company, a corporation, have paid plaintiff the sum of $ 6,445.50 and no more for his services; that there is now due and owing [63 Ariz. 207] to the plaintiff Cyrus Farwell from the defendant Ben Heney and the intervener Swisshelm Gold Silver Mining Company, a corporation, the sum of $ 3,755.25, which is now due, owing, and unpaid." Judgment was prayed for in this last-named sum. By way of reply to this counterclaim, the intervener (Swisshelm) filed the following denial:
"Deny that the defendants Ben Heney and/or Swisshelm Gold Silver Mining Co., a corporation, have paid plaintiff the sum of $ 6,445 and no more for his services, and that there is now due and owing the plaintiff Cyrus Farwell from the defendant Ben Heney and the intervener Swisshelm Gold Silver Mining Company, a corporation, the sum of $ 3,755.25."
It is to be observed that this attempted reply is a pure negative pregnant, and raised no issue. A negative pregnant is a denial pregnant with an admission of a substantial fact which is apparently controverted, or one which, though in form of a traverse, really admits the important fact contained in the allegation. Electrical Accessories Co. v. Mittenthal, 194 N.Y. 473, 87 N.E. 684, 685; Tierney v. Dietsch, 110 Neb. 462, 194 N.W. 475; McIntosh Livestock Co. v. Buffington, 108 Or. 358, 217 P. 635, 636. Nevertheless, the case went to trial as if issue had been joined on the claim for salary.
On the trial Swisshelm admitted that it owed Farwell $ 951.50, and proved, as a set-off to his claim for wages, that he had received from the smelter $ 1,904.27 from the sale of the four carloads of ore in question. Strange to say, the intervener did not plead the set-off. Proof thereof was admitted apparently upon the theory that it was admissible under the attempted denial of the reply. The court held that a watchman's salary counted for assessment work; that ...