Alabama Securities Co. v. Dewey, 47 So. 55

Alabama Securities Co. v. Dewey

47 So. 55 | Ala. | 1908

SIMPSON, J.

This action was brought by the appellee against the appellant on a common count for work and labor done. The claim of the plaintiff is that the defendant was engaged in the construction of the roadbed of the Mobile, Jackson & Kansas City Bailroad and the Gulf & Chicago Bailway, and intrusted the actual conduct of the work to W. D. Stratton, who for and on behalf of the defendant employed the plaintiff to supervise and conduct the work on the basis of reasonable compensation. The plaintiff claims that, although the contract under Avhich the work was done was made between said railroad company and" the Gulf City Construction Company, yet it was understood by all of the parties that it was really intended to be performed by the defendant company, and that said company acted through and by its agent, W. D. Stratton, who was one of the syndicate of managers who received and disbursed all of the moneys for the defendant, and that the other members of the syndicate, Stallo and McDonald, and Sherwood, the president, and Jones the secretary, of the 'defendant company, ratified all that was done by said Stratton. The defendant insists that said two- railroad-companies were practically owned by the same parties; that plaintiff was elected and employed as vice president and general manager of each of said companies, at a salary of $7,000 per year annum; that the appellent was merely the financial agent of the Gulf City Construction Company, which had the contract for building said railroads, and that whatever services were rendered by the *540plaintiff were under a personal agreement between Stratton- and the plaintiff; that the only consideration which plaintiff was to receive was the privilege of purchasing 100 shares of the capital stock; and that the first intimation the defendant had that the- plaintiff claimed compensation for his services, or that he sustained any relation to the defendant company which would entitle him to compensation for his services, was the institution of this suit in July, 1905.

The only questions presented for review by the assignments of error arise upon the evidence and charges. The plaintiff, while testifying to the work done by him, was asked, “Did yon, or did yon not, correspond with the Alabama Security Company in regard to it?” and replied : “I had very little correspondence with them. I had conferences at various times with Mr. Stratton, representing the Alabama Security Company.” The defendant moved to exclude this last sentence, “because it was a conclusion of the witness, and because it had not been shown that Mr. Stratton had any connection with the defendant.” There was no error in the refusal to exclude this statement. The defendant, could have cross-examined the witness as to the facts upon which he based the statement, and thus shown whether or not he was warranted in saying that Stratton was representing said company. McQrew & Harris v. Walker, 17 Ala. 824. For the same reason there was no error in refusing to exclude the further statement, made by said witness, that “Mr. Stratton representing the securities,” etc. The witness had testified that Sherwood was the president and Jones the treasurer of the defendant corporation.

Referring to assignments 2, 8, and 7: It was proper to allow proof as to the fact that Sherwood and Jones held offices as president and secretary of the defendant *541company, and at the same time were clerks in the railroad companies of which the plaintiff was vice president and general manager. These were circumstances which properly went to the jury. The fact that, parties were thus intimately associated, through a slight circumstance, yet, in connection with other facts, might have a tendency to show that the several companies were acting in unison, and that said officers of defendant company had notice of the fact that the plaintiff was performing the services claimed. The fact that Stratton and others were the “syndicate managers,” who secured the loans and disbursed the funds in paying for the work of construction, Avas properly admitted as a circumstance bearing upon the question as to whether Stratton was in such a position as to be authorized to select the persons to do or overlook the work, and to whom the money of the company should be paid for services rendered in the prosecution of the Avork. The fact that said testimony was inconclusive and slight did not render it inadmissible.

In order that the jury might judge, from ail of the evidence, Avhether Stratton had employed plaintiff, whether he had authority so to do, and whether plaintiff did the work, it Avas proper to show to the jury just what were the relations betAveen the parties. (Assignments 8 to 18.)

Assignment 5: There was no error in refusing to exclude the testimony of the effect that Stratton was directing, and gave all the directions which were given in, the prosecution of the work. There was no controversy about the fact that the security company Avas having the work of construction done. In doing this work it conld- only act through some agent, and if all the directions which were given to any Avere given by Stratton this fact was persuasive to show that he Avas in charge *542of the business on the part of the defendant. The nature of the business which he was doing openly and alone might aid the jury in ascertaining what he was authorized to do, in the absence of direct testimony on that subject. The expression, “No work was ever done by me under instructions from any one else,” was not testifying to a conclusion as to the agency of Stratton, but merely as to a fact, which showed only that Avhatever plaintiff did Avas under the direction of Stratton, leaving it for other testimony to establish the additional fact that Stratton had the authority to employ him.

As the plaintiff held office in the two railroad companies whose roads were being built, and there Avas a conflict in the evidence -as to Avhether he was to receive compensation for the services which he claimed to have rendered in and about the construction Avork, it was proper to allow proof as to the salary which he received from the railroads, as a. circumstance to- aid the jury in arriving .at a conclusion. The court erred excluding this evidence.

Assignment 15 : There was no error in overruling the motion to exclude what the plaintiff, as a witness, said about the Alabama Security Company being the successor of the construction company, as no grounds were stated for the motion. — Landman v. Bloomer, 117 Ala. 312, 23 South. 75; Larkin v. Baty, 111 Ala. 303, 18 South. 666.

Assignment 16: The amount that Avas paid to A. N. Bullitt for the work of supervising by him was irrelevant to the issues in this case. The amount that was paid him furnished no criterion for judging what amount the plaintiff Avas entitled to. Said testimony was properly excluded. — Western Ry. Co. v. Lazarus, 88 Ala. 457, 6 South. 877.

*543The testimony of the witness H. S. Jones was properly excluded. The plaintiff was not shown to be an engineer, or doing the work of an engineer; hence the salary of an engineer was no criterion for the value of his services. Besides, the witness stated that the sole basis for his opinion was that “certain bankers and brokers who finance different corporations employ expert engineers by the month. . These supervise from three to five railroads. Their time is continually occupied, and their compensation runs from $400 to $700 per month.” The witness did not show any knowledge of what is the customary compensation for a man in the position of the plaintiff, doing the service which plaintiff claims to have done.

Assignments 20, 21, and 22: The objections to questions to the witness Cobb, referred to in these assignments, were properly sustained. If the plaintiff was entitled to compensation for serviies rendered as claimed, the measure of Ms compensation should be fixed by the value of the services, without regard to any salary which he might, be receiving in any other official position. The jury were not charged with the duty of adjusting the equities between the various employments which the plaintiff enjoyed, but merely to ascertain ivhat the services rendered in this particular employment were worth.

Assignment 23: The court properly sustained the objection to the question to the witness Cobb as to what salaries the engineers of the Mobile, Jackson & Kansas City Railroad received, as that was not relevant to the issue as to what the services of the plaintiff were worth.

Assignment 24: There was no error in admitting the letter from Sherwood, Avho was president of the defendant company, to Stewart, Avho Avas auditor of the Mobile, Jackson & Kansas City Railroad. Counsel stated, in *544offering it, that it was for the purpose of showing that the president of the defendant company knew that plaintiff was engaged in the work. As thus limited, it was proper. While the plaintiff claimed that he was employed by Stratton (one of the syndicate managers) under authority from the defendant, the defendant claimed that whatever he did was merely as a personal accommodation to Stratton, and that the defendant knew nothing of the services rendered. This letter was properly admitted, as an admission on the part of the president of the defendant company that he knew of the arrangement with the plaintiff.

Assignment 25: There was error in admitting the proposition of Stallo. While it is spoken of by the plaintiff as a proposition of settlement, it does not on its face bear that appearance; but, if it was presented to the plaintiff as a proposition of settlement, yet it is not shown that Stello had any authority to make it. The plaintiff had stated that the arrangement for him to supervise the work was made by Mr. Stratton, and approved by McDonald and Stallo; but there is no proof that Stallo occupied any official position in the defendant company. If this paper was sought to be introduced in order to contradict Stallo, in addition to the fact that no proper predicate wras laid for introducing the paper, it does not contain any contradiction of what Stallo testified to, as he did not deny knowledge of the fact that the plaintiff did the work, but stated only that he did not have any part in making the arrangement with the plaintiff.

Assignment 26: The court erred in admitting the letter of Stratton to plaintiff. Stratton had not been shown to have any authority to represent the defendant company. On the contrary, Sherwood swore that he himself was president, and that Stratton did not hold *545any office in the company, or have anything to do with its business management. Moreover, this letter does not purport to he written by Stratton in behalf of the defendant company. Stratton and the plaintiff: were both officers of another company (the Mobile, Jackson & Kansas City Railroad Company), and this letter is addressed to the plaintiff as vice president and general manager of that company, and is signed by Stratton as “President” (evidently of the same company).

Charge No. 1, given at the request of the plaintiff, asserts a correct principle of law, and there was no error in giving it. If the defendant had considered it misleading, owing to the particular facts of this case, under which the defendant may have supposed that the plaintiff was merely acting on his authority as an officer of the railroad companies, an explanatory charge might have been asked.

There was no error in the refusal to give charge A, requested by defendant. The by-laws of the company provide that the president has power “to appoint competent persons to act as servants and employes of the company.”

Charge B was properly refused. — Arndt v. City of Cullman, 132 Ala. 552, 31 South. 478, 90 Am. Rep. 922.

Charge O was properly refused. It ignored the liability which would result from ratification. Besides, if Stratton alone had authority to make the contract, and did make it, it would have been as binding as if made by the three named.

There was no error in refusing to give the general charge in favor of the defendant.

The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.