The opinion
Rehearing denied March 21, 1911.
On Petition for Rehearing.
Opinion by
Mr. Chief Justice Eakin.
6. By the motion for a rehearing, defendant contends that the settlement of November 20, 1903, was a discharge in full for all services performed by plaintiff during the year 1903, and therefore he was not entitled to credit on the price of his stock for any service. The evidence shows that plaintiff contended that he was entitled to miner’s wages, $3.00 per day, independent of the amount to be allowed him for superintending the mine, and that the settlement only included the amount of his miner’s wages, on the accounting for the money passing through his hands. But, as stated in the opinion, we find that his whole summer’s work, both the mining labor and superintending the mine, were to be offset or compensated by the money advanced by the other stockholders for the expense of operation, the amount advanced being $4,000; and as defendant credited this amount, viz., 80 per cent of the value of the stock, in payment upon the stock of the other stockholders, plaintiff is entitled to a pro rata amount credited upon his stock, which would have paid his stock in full; but, as he had drawn $553.50 in cash on his work, his credit must be reduced accordingly, leaving that amount still due from him on his stock. The other advances made by the other stockholders stand as a debt against the company, and are enforceable as such, of which plaintiff’s stock must bear its part.
7. Failure of plaintiff to make payment as he agreed does not constitute a forfeiture of his rights. If he failed to pay, the company had a remedy to enforce payment. The penalty of his default is not different from other contracts or obligations to pay money.
The motion is denied.
Modified: Rehearing Denied.