7 Mo. App. 22 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This is an action to recover pay for a month’s services alleged to have been rendered by the plaintiff as a solicitor of insurance, for the month of May, 1877. That services were rendered was not denied; but the issue on which the case turns is whether the defendant is bound to pay the sum here claimed, or whether the obligation to pay rests upon one Wilson, who was an agent of the defendant, and Avho, as the defendant contends, hired the plaintiff on his (Wilson’s) own account to work for the defendant. The evi
It is, however, urged by the defendant that the plaintiff made out no case, as there was no authority shown on the part of Cole, the secretary, to employ the plaintiff for the company. Undoubtedly the plaintiff was bound to show such authority by evidence, as he was bound to supply any other link in the chain which constituted his case. But the company sent the secretary to St. Louis on' business connected with this agency, and his subsequent letters when at home, written as secretary, in connection with what he did when at St. Louis, apparently with the sanction of his company, constituted, we think, sufficient evidence of authority to go to the jury. Though authority must be proved, yet it may be inferred from facts justifying the inference.
The question) however, of the legal effect of the acts of Cole and Taylor, the defendant’s agents, was not properly put to the jury. The first and principal instruction given for the plaintiff is as follows : “If the jury believe, from the evidence, that C. B. Wilson, the agent of the defendant, even though unauthorized at the time to do it, on or about March 1, 1877, directed the plaintiff to go to work for the defendant, soliciting insurance in defendant’s company, at a salary of $175 a month, and that subsequently the defendant by its secretary having then the charge of the executive department and duties of the defendant, or by other agents authorized so to do, with full knowledge of the facts aforesaid, assented to and approved of said employment, and that thereafter the plaintiff worked for defendant under said employment for and during the month of May, 1877, and has not been paid therefor, then the plaintiff is entitled to a verdict at your hands.”
The real issue in the case is not presented by this instruction. The “said employment” which the secretary or other agent is required to assent to, might have been as
Where a person is employed by an agent, the mere fact that the principal of the agent knows that the person so employed is acting in the business committed by the principal to his agent, and accepts such employment as beneficial, does not prove an agreement on the principal’s part to pay for the services of the person so employed. To hold the principal to payment,, the element of privity of contract between the principal and subagent should appear. So, acts of recognition and the acceptance of services on the part of the principal do not necessarily tend to prove ratification in the sense here claimed; for the question arises, ratification of what? If, for example, Cole and Taylor, relying on what Wilson seems to have done (that is, hired the plaintiff under the obligation to pay him), accepted the plaintiff’s services as the employee of and to be paid by Wilson, the acts of Cole and Taylor in this behalf in no way prove, or tend to prove, their acceptance or ratification of
The question presented by the defendant’s second instruction should have been differently put. As put, it was properly refused. The liability of the defendant does not depend merely on whether Wilson had authority, and the accompanying qualification is-too vague. The defendant’s third instruction, as asked, was properly refused. What has been said above serves to show how far any part of it is applicable.
With the concurrence of all the judges, the judgment of the court below is reversed and the cause remanded.