Calkins v. Seabury-Calkins Consol. Min. Co.

Citations

• 5 S.D. 299
• 58 N.W. 797
• 1894 S.D. LEXIS 60

Syllabus

<p>1. An allegation of the complaint, not denied by the answer, stands admitted, and need not be proved.</p> <p>2. An allegation in the complaint that defendant agreed to pay plaintiff, as its superintendent, five dollars per day, is not denied by an allegation contained in a counterclaim in the answer that “on or about the 1st day of September, 1885, the said plaintiff was appointed superintendent of the defendant corporation, without any fixed rate of compensation.”</p> <p>3. Payments fully made for Sunday labor cannot be recovered on the ground of the invalidity of a contract for Sunday labor.</p> <p>4. The courts will neither assist in enforcing such a contract nor ip recovering what has been paid under it. The parties, being in pari delicto, will be left where they have put themselves.</p> <p>5. Plaintiff was appoinned the superintendent of the defendant corporation under a by-law defining his duties to be “to reside at the mine and to take charge of the company’s property; to control and direct all labor; to make monthly returns to the board of trustees of all expenditures; to make requisition upon the board of trusteesfor funds necessary to prosecute work at the mines and company’s works.” Held, that, in the absence of evidence showing other terms of employment than those contained in the by-law, such superintendent’s right torecoverfor services was not limited to days when he was actually employed with the men working at the mines, as the by-law plainly contemplated other duties, which mig'ht properly and perhaps necessarily he performed at other times.</p> <p>6. After the testimony in a case has closed, it is discretionary with the court whether to open the ease or not, to receive additional evidence; and the decision will not be reviewed here, unless this court is satisfied that such discretion was abused.</p> <p>7. An exception “to that portion of the court’s charg-e commencing with the words [specifying the words], and from thereto the end,” is not an av