71 Mo. App. 585 | Mo. Ct. App. | 1895
Lead Opinion
This action is based on an account for legal services rendered by plaintiff for defendant. The plaintiff recovered below.
The answer of defendant to this petition is as follows: “Now comes the defendant, and for answer to the petition of the plaintiff herein admits that it is a corporation as in said petition charged, and that it employed plaintiff to act as its local attorney in Clinton county, in the state of Missouri, but defendant denies that it ever at any time agreed or promised to pay plaintiff a yearly or monthly salary of any sum or amount. On the contrary, defendant avers and charges the faet'to be that under the contract and agreement between plaintiff and defendant it was expressly agreed and understood that the compensation to be paid plaintiff for his services was dependent entirely upon the amount and value of the services rendered by him; that he was to render from time to time an account of the services rendered and make a reasonable charge for the same; and in the event of any controversy between him and the defendant' about the amouiit of any of his said charges the same were to be referred to the then acting general solicitor of the defendant for final adjustment.
“Defendant states that plaintiff has failed and refused to render to defendant an itemized account of the services rendered by him, in accordance with the terms of his said employment, and the amount thereof has never been agreed upon between the plaintiff and the defendant; that prior to this suit a controversy existed and now exists between plaintiff and defendant about
We entertain no doubt that under the answer a question of Mr. Lathrop’s authority could not arise. The evident meaning of the answer is, as stated in the foregoing instruction, that no denial of authority was made, but on the contrary was admitted.
The only possible way to bring in a question of the agént’s authority is to say that the answer admits he had authority to employ plaintiff as such attorney for Clinton county at a compensation depending upon the service's rendered, but not to admit he had authority to employ plaintiff at the compensation of a stated sum. In other words this contention amounts to this; that Mr. Lathrop had authority to make the employment and to agree upon a compensation, but not the compensation which plaintiff claims. In considering the case from.the point of view just suggested we shall treat Mr. Lathrop as the defendant’s general agent for the purpose of employing local attorneys in Missouri. The evidence on defendant’s part shows that he was in charge of defendant’s legal business in Missouri and a small portion of Iowa and that he was authorized to employ local attorneys in the different counties for a compensation, though that evidence does further show that such compensation was to be reasonable charges for services, and from time to time to send bills to him; and that if a controversy arose over the charges it should be submitted to the general solicitor for the defendant. Mr. Lathrop was thus made the general agent of defendant. He exercised his own choice in selecting the local attorneys. The agency was none the less a general agency because it did not extend over the whole business of his principal.
Conceding, therefore (merely as a concession), that the answer reasonably bears the construction above mentioned, it will not aid defendant in this controversy. For if a principal sends out an agent clothed with authority to make an employment and to agree upon compensation, but with instructions unknown to the employee, directing such agent not to go beyond a certain amount of compensation for such employee, the principal will be bound by the compensation which the agent agrees to pay; provided, of course, that it be reasonable in its character and amount. In such case the agent is acting within the apparent scope of his authority. And in this respect it has been said that there is no difference between a general or a special agent. If he be a special agent for a certain purpose, he will be clothed with all necessary power to effectuate that purpose. As “when A. is employed by B. to do a particular act, A. is authorized by B. to do whatever is proper ahd usual to perfect such act.” Wharton’s Agency, sec. 135; Mechem on Agency, sec.'280,. So, if one authorized an agent to sell a horse, but secretly instructs • the agent not to accept less than a certain amount, the principal will be bound though the agent sells for a less sum. Ewell’s Evans on Agency (side page), 105. That author says
In the case at bar defendant admitted, as we have shown, that Mr. Lathrop had authority to employ the plaintiff as defendant’s local attorney for Clinton county at a compensation; and defendant’s evidence showed that he had such authority for the employment of such attorneys generally through the state. This carried with it the apparent authority to fix the compensation (within reasonable bounds) and no secret limitations as to the character or amount of the compensation 'can affect the plaintiff who had’ no notice of such restriction.
We have examined the instructions offered by defendant and refused by the court. Those relating to the agent’s authority are disposed of in what has been already written. The others (not numbered) were also properly refused. One singles out by name only a portion of the evidence and reminds the jury that they may consider such “and all other facts and circumstances in evidence.” It was not reversible error to refuse this, since under the facts shown in evidence it was calling undue attention to particular portions of the evidence by name. Another directing the jury to disregard all evidence respecting plaintiff’s contract with the St. Joseph & St. Louis Railway Company was properly refused since the testimony given by
After a careful examination of the record and of the briefs and arguments of counsel we can find no justification for disturbing the judgment, and hence are constrained to order its affirmance.
Dissenting Opinion
(dissenting). — Among the errors assigned I think there is one that should result in reversing the judgment. I refer to the court’s action in taking from the jury the question of Lathrop’s authority to make, on behalf of defendant, the contract sued on. Although the court admitted evidence on that issue, yet when the testimony was all in, the following instruction asked by defendant was refused and none other of like tenor was given, to wit:
“5. It is incumbent upon plaintiff to prove to the jury, by a preponderance of the evidence, as a part of his case, that Gardiner Lathrop had authority from
The plaintiff in his petition alleged the making of a special contract with defendant, whereby he was to receive an annual salary for attention to its legal business in Clinton county. Defendant by answer denied that it had made any such contract. The existence, then, of said special contract was squarely put in issue, and the burden of proving it rested with the plaintiff.
To establish the affirmative of this allegation, plaintiff introduced evidence tending to prove that Lathrop, an agent of the defendant, entered into the contract in its behalf. That was proper, and defendant would be bound, provided, however, that Lathrop was duly authorized by the company to make such a contract, and the proof of this authority was a necessary component part of plaintiff’s case. Without such proof, the special contract' as alleged was not shown. It was an essential link in the plaintiff’s case. Boogher v. Ins. Co., 8 Mo. App. 533. Same case reported, 6 Mo. App. 592, of which we have been furnished a manuscript opinion.
We may well adopt the language of Judge Hayden in the latter case, and say that'the burden was on the plaintiff to prove the special contract and all of its elements, one of which was authority in Lathrop to make it; or, as stated in Mechem on Agency, sec. 276: “Persons dealing with an assumed agent, therefore, whether the-assumed agent be a general or special one, are bound at their peril to ascertain, not only the fact of the agency, but the extent of the authority, and in case either is controverted, the burden of proof is upon them to establish it.”
The case above cited from the St. Louis court of appeals is quite similar to the one at bar. Boogher sued the insurance company for breach of contract of
It seems to be plaintiff’s contention (and which is adopted by the majority opinion) that the answer admits the authority'of Lathrop, the agent, to make a' special contract sued on. This, I think, is a misconception of the pleadings. The answer may be treated as an admission that the agent had authority to make a contract for services which were to be paid for according to the extent and value thereof (and which the answer alleges was the contract between the plaintiff and defendant), but admitting authority in the agent to enter into a contract of that description is not an ad
In my opinion, then, the trial court eliminated a material issue in the case, and thereby deprived defendant of a defense to which, under the pleadings, it was entitled.