The point taken is, that, as the bill of exceptions was signed after the beginning of the term of this court at which the writ of error was made returnable, and during a term of the circuit court succeeding that at which the case was tried, it cannot be considered. But we are of opinion that this objection cannot avail. The stipulation of September 14, 1883, shows, on its face, that the matter of the settlement of the bill of exceptions had been submitted to the judge, and that the delay was agreed to for the convenience of the judge. The purport of the stipulation is, that the bill had, with the knowledge of the plaintiff, been tendered to the judge for signature. This being so, the consent of the parties that the judge might delay the settlement and signature did not have the effect to cause any more delay than would have occurred if the judge had delayed the matter without such consent. The defendant was not to blame for the delay beyond the time named in the stipulation. He appears to have done all he could to procure the settlement of and signature to the bill, and he cannot be prejudiced by the delay of the judge. The bill of exceptions shows, on its face, that the several exceptions taken by the defendant were taken and allowed at the trial and before the verdict. The cases cited by the plaintiff (Walton v. U.S., 9 Wheat. 651; Ex parte Bradstreet, 4 Pet. 102; Sheppard v. Wilson, 6 How. 260, 275; Muller v. Ehlers, 91 U.S. 249; and Coughlan v. District of Columbia, 106 U.S. 7, 1 Sup. Ct. Rep. 37,) do not contain anything in conflict with this ruling. It is supported by U.S. v. Breitling, 20 How. 252. The motion to strike out the bill of exceptions is therefore denied.
The claim of the plaintiff is, that he was employed, not by the defendant personally, but by the plaintiff's brother, M. T. Patrick. The defendant, not disputing the rendering of the services or their value, denies that they were rendered for him, and denies that M. T. Patrick was his agent. He contends that the services were rendered to the Flagstaff Silver Mining Company of Utah, Limited, an English corporation; that M. T. Patrick was the agent of that company; and that, as such, he employed the plaintiff. The question of this agency was the principal question in dispute at the trial.
The Flagstaff mine was owned in 1870 by certain parties in Utah territory, who sold it, through the defendant, to the Flagstaff Silver Mining Company That company continued to own and operate the mine until December, 1883, when J. N. H. Patrick, another brother of the plaintiff, went from New York to London, the defendant being then in London. On the day that J. N. H. Patrick arrived in London the company received a telegram from one Max well, superintendent of its mine in Utah, stating that the mine was attached for debt. It applied to the defendant for a loan of money; whereupon the following written agreement was made between the company and the defendant, on the sixteenth of December, 1873:
'This agreement, made this sixteenth day of December, one thousand eight hundred and seventy-three, between the Flagstaff Silver Mining Company of Utah, Limited, of the one part, and Erwin Davis, now of the city of London, of the other part.
'Whereas, the said Erwin Davis, on the twelfth of June, one thousand eight hundred and seventy-three, advanced the said company the sum of five thousand pounds, at the rate f six per cent. per annum interest;
'And, whereas, the said sum of five thousand pounds is now due and owing to said Erwin Davis, with the interest thereon;
'And, whereas, it is necessary that the said company should have a further advance of money for the purpose of continuing the development of their mine, and for carrying on their business;
'And, whereas, the said Erwin Davis doth hereby agree to advance to said company at such time or times as may be necessary for the purpose aforesaid, not to exceed in amount the sum of ten thousand pounds, in addition to the said sum of five thousand pounds already advanced;
'And, whereas, the said company has, at different times and dates, sold to the said Erwin Davis five thousand one hundred and ninety-five tons of ore, which said ore the said company agreed to deliver to the said Erwin Davis at the ore-house of said company, free of cost; 'And, whereas, they have so delivered two hundred tons of said ore, leaving a balance of four thousand nine hundred and ninety-five tons yet undelivered, the cost of said ore having all been paid to said company by said Erwin Davis: