85 Kan. 568 | Kan. | 1911
The opinion of the court was delivered by
Andy Hornick, who was an employee of the Union Pacific Railway Company, was injured while in the service of the company, and after some negotiations with Taylor, a claim agent of the company, a settlement was made the terms of which are in dispute. At that time Hornick, who could not read or write, signed a paper which stated that in consideration of the payment of $25 he released the company from damages for the injuries which he had sustained. The release also recited that the $25 so paid to
The answer of the company admitted that Taylor was its claim agent, with authority to settle claims on a cash basis, and that a settlement had been made on that basis and reduced to writing, a copy of which was set forth, and which contained a statement that $25 was the only consideration. There was a denial that there was any agreement to give Horniek employment, and a specific denial, under oath, that Taylor had any authority from the company to make such an agreement.
The reply alleged that when Horniek signed the contract he was told that the agreement as to employment was included in it; that he could not read or write, and that if the writing set up in the answer is the one
It is contended on this appeal that as appellee’s petition charged the breach of a written contract in failing to furnish permanent employment, and as the one signed and introduced in evidence contained no provision as to employment, there could be no recovery in the action, and the question was raised by motion and also by demurrer.
When appellee learned that the writing which he signed contained no stipulation as to employment he should have obtained leave to amend the petition and have set forth the real contract that was made and the circumstances under which the untrue or incomplete writing was signed and asked for reformation and the enforcement of the contract actually made. However, the facts omitted from the petition were set forth in the reply, thus informally pleading facts justifying a reformation of the contract and its enforcement. The appellee in his petition set out a written contract as he claimed it was made, giving its effect, and stating that it was not in his possession, and therefore an exact copy of it could not be included in his petition. The appellant, who had the writing, gave a copy of it in its answer. The appellee replied that the copy so shown in the answer was not the contract actually made and if he signed the paper his signature was fraudulently obtained, and he set forth the omitted terms and the real contract substantially as he had alleged in his petition. It thus appears that the contentions of the two parties were clearly stated and well understood and the record discloses that the claims of the parties were fully presented and tried out. The fact that formal reformation was not demanded did not prevent the court from determining, under the facts as
In Huber v. Claudel, 71 Kan. 441, 80 Pac. 960, it was held that formal reformation of a writing was not essential to the enforcement of the contract found to have been actually made. It was there said:
“It has long been recognized that a court may supply matters omitted from a written contract either by mutual mistake or fraud, and having supplied such matters may enforce the contract as thus reformed. Nor is it essential that formal reformation shall be directed before enforcement of the contract as the court finds it should have been made will be ordered.” (p. 443.)
(See, also, Hardy v. LaDow, 72 Kan. 174, 83 Pac. 401.)
There is evidence, tending to sustain the claim of appellee that the agent who negotiated the settlement agreed to furnish employment to appellee, as he had alleged, and if the agent had authority to make the contract t-here was'a basis for a recovery by appellee. The authority of the agent to contract that employment should be given appellee is denied under oath. This denial raises an issue of fact as to the authority of the claim agent and it devolves on appellee to prove that he was authorized to make such a contract. There is a claim that the verification of the answer of appellant was insufficient in that it was made by an attorney of appellant without setting forth the reasons why it was not made by the party himself.
The code provides that certain allegations, including those of authority, shall be taken as true “unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” (Civ. Code, § 110.) There is another provision in section 116 that when the verification is made by an agent or attorney he shall state the reasons why it is not made by the party himself,
As every one knows the reasons why a corporation can not make an affidavit, it would serve no purpose to state them in the affidavit made by the agent or attorney of the corporation. It is obvious that the restrictions in section 116 of the code do not apply to corporations. Under similar provisions in other states it has been held that the limitations on verification by agents or attorneys only apply to natural persons. (Standard Fashion Co. v. Dean, 8 Ohio Dec. 389; Barrett Mining Co. et al. v. Tappan et al., 2 Colo. 124.) Aside from this consideration the case appears to have been tried on the theory that the authority of the claim agent was in issue. No objection was made to the form of the answer before the introduction of the evidence nor was there any challenge of the verification. If appellee desired to question the form or sufficiency of the verification he should have attacked it by motion before going into trial of the facts. (Warner v. Warner, 11 Kan. 121.) The objection which was made after evidence had been introduced came too late. (Hoopes v. Implement Co., 45 Kan. 549, 26 Pac. 34.)
The authority of the claim agent was in issue and the
“The scope of the authority of the claim agent and assistant claim agent of a railway corporation is not, however, defined by the law, and if put in issue must be proved as a matter of fact. Here the authority of the officials named to make the settlement relied upon as. the plaintiff’s cause of action was denied under oath, and there is no evidence of such authority in the record. It is true that the conduct of the officials named may appear to be inexplicable except upon the supposition that they had authority. Agency, however, cannot be proved by the acts or declaration of the agent except under special contingencies not here involved. The fact of authority must appear before the conduct of the agent can be shown to bind the principal.” (p. 678.)
In a New Hampshire case (Bohanan v. Railroad, 70 N. H. 526, 49 Atl. 103), involving the authority of a claim agent, it appeared that the agent made a settlement in which he promised the injured employee a sum of money and also future employment during good behavior. The agent told the employee that he had authority to make the contract and the money promised was paid and work furnished for a short time. In an action on the contract the only testimony offered which tended to prove the agent’s authority was his acts as claim agent and the fact that the company recognized the settlement so far as to pay the money promised and to furnish the employee work for a short time. It was held that the statements of the agent were no proof of his authority, arid that evidence of the payment of money by the company on the settlement and of the furnishing of work for a time was not sufficient to establish the authority of the claim agent to promise employment during good behavior in settlement of the claim. It was there said:
“If the jury could find from such evidence that an agent was authorized to make a different kind of a contract, it would only be necessary to show that he had made a contract which his principal recognized to establish his authority to make any contract that the principal could make for himself. So if the jury could find from this evidence that Brown was authorized to promise work for life in settlement of the plaintiff’s claim, they could also find that he was authorized to promise the entire earnings of the road for the same period, or to give the whole of its rolling-stock in settlement.
“There is no evidence that the plaintiff had a right to believe that Brown was authorized to make this settlement, for the only thing the defendants are shown to have done which tended to prove that Brown had any authority to act for them was to hold him out as their claim agent. Giving this fact the construction claimed for it by the plaintiff, Brown was their general agent*577 to settle claims. The duties of a claim agent are not prescribed by law, and it is not a matter of common knowledge that they are entrusted with greater authority than other general agents. Such agents are only clothed, as a matter of law, with authority to employ the usual and ordinary means of accomplishing that for which the agency was created.” (p. 528.)
(See, also, Backman v. Charlestown, 42 N. H. 125; Flanders v. Putney, 58 N. H. 358; Taylor etc. Co. v. Starkey, 59 N. H. 142; Hovey v. Brown, 59 N. H. 114; Hayes v. Colby, 65 N. H. 192, 18 Atl. 251.)
Proof of the fact that Taylor was held out as claim agent and had been acting in that capacity warranted the inference that he had authority to employ the usual and ordinary means of effecting settlements, but it does not warrant the inference that he was authorized to use extraordinary means and promise employment for life or as long as appellee might desire it. It follows that the demurrer to appellee’s evidence should have been sustained and the motion for a new trial granted.
The judgment is reversed and the cause remanded for a new trial.