New York, Philadelphia & Norfolk Railway Co. v. Bates

| Md. | Dec 16, 1887

Miller, J.,

delivered the opinion of the Court.

This was an action of assumpsit brought by the appellee against the appellant, to recover for thirteen and one-half months’ services from the 13th of November, 1882, to the 30th of December, 1883, as superintendent of the construction of part of the defendant’s road, at $75 per month. The amount claimed to be due by the bill of particulars, after deducting credits, was $713.21, and at the trial the jury gave a verdict in favor of the plaintiff for that sum.

The exceptions taken relate entirely to the rulings of the Court upon certain prayers offered by the defendant, (none appearing to have been offered by the plaintiff,) and these rulings alone are before us for review.

There was some discussion at bar as to the pleadings, but none of the prayers make any reference to the pleadings, nor was there any ruling made by the Court below involving the admissibility of testimony. No question therefore as to the sufficiency of the pleadings is open for review in this Court. Leopard vs. Ches. & Ohio Canal Co., 1 Gill, 222; Dorsey vs. Dashiell, 1 Md., 201.

In oxxr opinion the learned Jxxdge before whom this case was tried, fell into error in his action in granting the defendant’s second prayer as modified by him, and in granting, at the same time, the defendant’s sixth prayer. By the fix’st the jury were instructed that if they found the facts stated in the prayer and in the modification thereof made by the Court, they were “at liberty to consider the letter of the 21st of February, 1884, from the plaintiff to the witness Painter, as axxthority to said Painter simply to procure an adjustment and allowance of the vouchers therein mentioned by the defendant;” and by the second they xvere instructed that upon finding the same facts they were at liberty to consider this letter “as authority to said Painter to adjust or to receive payment of the vouchers above referred to.” To allow the jury upon the same state of facts to place two different and inconsistent interpretations upon a written instrument, which it was the province of the Court itself to construe, was certainly a fatal error in the trial of the case. The jury ought to have had a. plain and definite instruction from the Court as to the extent of the authority which the plaintiff gave to Painter by this letter, for in our judgment the case in a great measure depends upon its true construction in this respect, in view of the facts disclosed by the record.

What then is the construction and effect of this letter, in view of the testimony found in the record ? The two main witnesses in the case were the plaintiff and Uriah U. Painter. On some points their testimony is conflicting, but there seems to be no dispute as to' the following facts: Painter was president of the defendant company during the period covered by the plaintiff’s claim, and so continued up to the 21st of January, 1884, but on that day he ceased to be president, and was succeeded by Mr. William L. Scott. The plaintiff sent and delivered the monthly vouchers for his salary to Painter in Washington, and at the latter’s request. These vouchers when thus sent and delivered were receipted by the plaintiff, in accordance with the custom and requirement of the company in regard to all vouchers. Those of them covering the amount sued for were never paid by the company, and remained in Painter’s possession up to the date of the letter in question. Thus far there appears no conflict of testimony. Painter then testifies that on the 30th of December, 1883, he had a conversation with the plaintiff about his vouchers in his (witness’) office in Washington ; that he then told the plaintiff that he (witness) had disposed of his interest in the railroad and had nothing more to do with it; that he, witness, had some vouchers of his own, and if the plaintiff desired it he would put plaintiff’s vouchers on the same footing with his own, and plaintiff said “ that was all right;’’ that he took out the plaintiff’s vouchers and said that he had not up to that time approved them, and told him they had never been adjusted, and that he would see the General (General William Painter, the brother of the witness, and the vice-president of the company) about them, and see what could be done, and plaintiff said “all right,” and he and witness went to Philadelphia the next day; that in the latter part of February, 1884, General Painter brought him the letter in question dated the 21st of February, 1884. This letter is conceded to have been written and signed by the plaintiff and is as follows :

“Pocomoke City, 2, 21, ’84.

“U. H. Painter, Esq.

Dear Sir:—In regard to the vouchers of mine, sent to you for service as Supt. of construction during the year 1883, 1 hereby authorize you to make the best settlement you may be able to do for me.

“ Yours respectfully,

“ J. L. Bates.”

Reading this letter in the light of the facts above stated, or indeed in the light of any testimony on the subject to be found in this record, we are clearly of opinion the plaintiff thereby authorized and empowered Painter, who was then out of office and no longer had authority to act for the company, to present these unpaid vouchers or claims and to obtain "the best settlement of them” he could ; and that, the term “ settlement” as here used, includes not only the determination of the amount due, if there was any dispute on that subject, but the collection and receipt of the-money coming to the plaintiff under such settlement. To-this extent, as it seems to us, the authority plainly goes, and we are unable to place a more restricted construction on the language used. Merely to have the vouchers “ adjusted and allowed,” without collecting and receiving the money would not, in our judgment, gratify the broad terms of the letter, nor accomplish the object the plaintiff had in view in writing it. He lived in a distant locality, and what he wanted was to get the money he claimed to be due to him on these vouchers; and thinking that Painter, who had similar unpaid claims of his own, would be the best person he could employ for that purpose, he made him his agent, to obtain what he could in payment therefor.

Such being the extent of his authority what did Painter . do under it ? He testifies that in pursuance of this letter he. settled the vouchers mentioned in the bill of particulars with the company; that he made the settlement with Mr. Cassatt, who was the agent of John Keller, the contractor for the construction of the road ; that in the settlement he put the plaintiff’s vouchers on the same footing with his own, and they were all settled for and delivered to the company at the same time ; that the company accepted the vouchers and the settlement, and in the settlement for all these vouchers, including those of the plaintiff as well as his own, the sum of $5000 was paid to him in March, 1884, and the remainder in April, 1884.

It is true that he no where says that he ever paid any of this money over to the plaintiff, and from the fact that this suit is brought, we assume he did not. But if the company acted in good faith in the matter of the settlement and payment of the money to Painter, there is no principle of law or demand of justice that requires them to pay it over again to the plaintiff. He was the plaintiff’s agent to collect and receive the money, and if he lias defrauded his principal by not paying it over, the remedy of the latter is against him and not against third party dealing with him in good faith as such agent.

The defendant’s fourth prayer meets our views of the case as above expressed, and should have been granted. Most of the hypothesis of facts set out in this prayer depends upon the testimony of Painter, but the prayer leaves it to the jury to find whether they were true or not. The credibility of the witness was, of course, entirely for the jury to pass upon. In the defendant’s first, second and third prayers there are some defects which justified their rejection. The first fails to leave it to the jury to find that the company acted in good faith, and the' second and third do not, in plain terms, leave it to them to find that Painter had ceased to be president when the letter was written.

We are also of opinion that the defendant’s fifth prayer announces a sound legal proposition and should have been granted. If the jury found from the evidence, as the prayer puts it, that these unpaid vouchers were not signed and approved by Painter until after he bad ceased to be president, then it seems to us plain, in the absence of proof that any other official of the company had authority to sign and approve, that these vouchers were not, of themselves, evidence of any indebtedness from the company to the plaintiff, and the jury were not at liberty so to consider them. After he had ceased to be president he could do no act, in that capacity, to bind the company.

(Decided 16th December, 1887.)

Judgment reversed, and new trial awarded.