Rich Printing Company v. McKellar's Estate

444 Appellant, v. ESTATE COMPANY,

RICH PRINTING Deceased, et McKELLAR, KENNETH DOUGLAS (2d) Appellees. 361. W. al., S. February 25, Section, 1959. at Jackson. Western 5, Supreme June 1959. Denied Court Certiorari July Rehearing- by Supreme 1959. Court Denied (2d) See 330 S. 959. W. Memphis, Hal & Gerber, Gerber, Rond Gerber, appellant. Myar, McCloy, A.

Sam Kenneth F. Jr., Clark, Jr., Myar Memphis, appellee. & Wellford, (W. S.). appeal J., P.

AVERT, This from is an County, Shelby decree of Tennes- Probate Court denying appellant, Printing see, Rich the claim of Com- pany Nashville, $2,542.21 the amount Tennessee, against the Kenneth Mc- estate of the Senator D. late Kellar. The claim is for the balance due mailing material ordered Headquarters McKellar’s Nashville, dur- Tennessee, ing primary the senatorial election 1952. only printing

The total the and account included not expense charge incident but it the thereto, included preparing post- for for the United States mail and necessary age of items therefor, ordered said headquarters campaign of behalf Senator McKellar’s in seventh term as Democratic nomination States United Senator. campaign, or

Senator McKellar had conducted such a for the conducted, had as Democratic nominee same in in each of 1934, office 1922, 1928, and 1946, campaigns in his nomi- former successful was regular nation and elec- thereafter was successful in the following tion which the Demo- occurred November each primary during of the former election, cratic each and ap- campaigns primary in election the the Democratic pellant perform performed had similar it did services as during campaign in the 1952 behalf McKel- of Senator experience campaigns His lar. these must in former relationship been such that he understood of have campaign manager, also the candidate such prevaliing relating thereto. custom in Tennessee

The sent from total account credited with amounts was headquarters appellant, and when said office campaign over the amounted total account including a contribu- $21,544.72. The credits thereon, manager campaign by Morse, Mr. David tion to leaving appellant, of $2,- a balance $19,002.51, totalled filed. the claim 542.21, amount question, campaign During in Senator the Democratic Hermitage headquarters Hotel, McKellar’s was in through operated by It was Nashville, Tennessee. Gentry campaign manager Mc- as Jimmie Hudgins manager, and his assistant Kellar, Ward publicity press Ralph charge Wheatley rela- in manager, headquarters from tions, under instructions publicity, releases, news relations, which included “news preparation kinds of brochures all and the ’ campaign in- ’. The material literature and all kinds originated pre- litigation and was volved headquarters Wheatley pared by generally by appellant him and over to carried turned at picked up headquarters its officein at the Nashville, by Mr. Morse.

Though expressly by proof, shown the it can be abundantly inferred therefrom Senator McKellar that being being knew kind of that was done and complimented distributed, and at least two on occasions Wheatley Mr. on of the contents the material. campaign

After had closed, made two were credits August by on one $2,000 of on account, 8, 1952, cash, January by of and the other a 14, 1953, $252.41 check signed by Gentry Mr. Hud- and delivered Mr. Ward gins, to the addition on said $750 credit account Morse. general public political think a matter

We primary a in a information that candidate cam State paign, per such Governor and United Senator, States appoints sonally campaign manager selects and a puts charge commonly him of that is known as headquarters, the candidate’s and this we think is mat a knowledge may public ter of such the courts take judicial knowledge candidate does select and appoint campaign manager. Of course will have he supporting counsel of friends who are advice and campaign some of but the him, leaders, at least designated appointed he has his and when his cam opinion paign manager, manager it is our agent primary election becomes of that scope authority with broad which includes candidate, headquarters force office the selection an approval specific charged, without of the candidate accepted by same has been candidate when the with- responsibility procuring protest, with further out publication necessary what to be the considers campaign. advertisement candidate’s day of on 25th Octo- Senator McKellar died testate the By Jr., his will, McKellar, 1957. James Judson 0. ber, McCloy, Nickey, Jr., Sam and Stuart Dunn, Irwin W. by probate order of On its were nominated executors. Sylvanus Judge Honorable of the Probate Polk, the Shelby County, on the 1, of November above 1957, Court duly appointed qualified. executors and referred to were by questioned claim law, time Within the allowed the given properly necessary thereof. filed was and all notices by the allowed 11, 1958, law, On March within time appellees, to, filed the executors hereinabove referred exceptions following their words: the Rich estate indebted “Said is not to claimant, Printing Company, in amount.” exceptions duly hearing given, of Notice was on and May exception and heard 1958. At was 1, set hearing the claimant its witnesses introduced as appellant, manager Bert Morse, and Mr. David S. preserved oral evidence was in the record. Bates, whose Ralph deposition Wheatley Ten- Mr. Nashville, The exceptors The introduced was also offered. no nessee, taking the'position proof, that: headquar- (1) did not McKellar authorize expenses evidenced filed; to incur account ters expense, Having (2) authorized the not he did not ratify it therefore his been incurred and had es- after on the claim. was tate liable proof After tbe the record indicates that closed, Judge opinion Polk from dictated the bench his appears in full in the sus- record, entered his order taining exceptions disallowing fol- claim as lows : Sustaining Exceptions Disallowing

“Order And

Claim day “This cause came on to be this 1st heard May, upon Printing sworn claim Bich of, Company, upon exceptions Nashville, Tennessee; duly upon such claim filed Co-Executors; testimony the oral S. David Morse Mr. Bert upon Memphis, deposition Bates, Tennessee; Balph Wheatley, upon Nashville, Tennessee; upon statements of counsel; and the entire record this cause. appears

“From all of which it to the Court that carry the claimant herein failed to has the burden proof liability as to the the decedent or es- his tate for the claim asserted. adjudged is,

“It therefore, ordered, and decreed exceptions by filed the Executors to Printing Company claim of Bich be, and the same hereby sustained, and the claim are, of the said Bich Printing Company hereby is at disallowed claimant’s duly to which cost, of the Court ex- action claimant prayed cepted appeal Appeals, to an Court granted upon complying which is claimant’s with the perfection respecting appeals. law of such Sylvanus Judge Polk,

“s/s May “Dated — appellant hav- in this Thereafter, claimant, Court, appeal ing exceptions prayed an this saved assigned perfected as fol- four errors Court, has lows:

“I. holding because the rec- that, “The Court erred in did not does not McKellar ord disclose that Senator agree obligation, personally pay the claimant carry proof. failed burden quite was error because this “This observation beyond point. An had burden. Claimant no such necessarily proved by admissions account debtor.

“II. holding claimant failed “The Court erred in carry proving Mc- the burden that Senator debt. liable for Kellar was this prove claimant did was because “This error obligation McKellar, incurred express implied agents, through either with authority, acts of his or, if ratification of not, authority. agents In Sena- event, either without knowledge of the transaction. full tor had

“III. holding gen- “The erred that it Court in any political or senatorial, candi- eral custom a obligations personally pay be bound in- date, by headquarters. curred ‘‘ proof the uncontradicted This is error because contrary. all to the

“IV. denying “The Court erred claim. tlie “This was error of the claim because amount performance and the manner of of the services ren- questioned. dered were not should The claim have by been allowed because it was contracted Senator employees agents, McKellar’s servants or with implied authority by actual or ratification, as well by usage.” as custom and appellee,

In the brief of us, now under the before head- ing appears following “Recitation of state- Facts”, ment:

“The late Kenneth D. McKellar entered Campaign Primary Democratic for United oppo- States Senator from the State of Tennessee (R. 38). sition 37, to Mr. Albert A 26, Gore 22, 30, campaign headquarters organized in was Nashville, Gentry Campaign being Mr. Man- Tennessee, James ager, Hudgins Manager, being Mr. Assistant "Ward Wheatley Ralph. employed being Pub- and Mr. licity weekly compen- a received Man, Gentry (R. 40). paid Mr. $100.00 sation. Hudgins Of these Ward directed men, most campaign (R. 22).” campaign headquarters be observed that the will So manager, manager, organized assistant an publicity publicity being director, em- and a director per appears only ployed and who at week be the $100 receiving salary. of the three one proper out statement It seems to set made proof Judge analysis Trial learned 454 proper judgment, determina- Ms final for the

basis for upon depends judgment tion of whether his is correct analysis interpretation whether his correct constitutes governing proof, of the and His statement the law. as follows:

“The Court: Print- filed Eich

“In this claim has been case, Company against ing estate of of Nashville the Sena- of $2,542.22, tor Kenneth D. McKellar in the amount under item- oath, as set forth which is attached an print- ized work form of statement done in the mailing ing matter and the thereof incident per- campaign, primary to which senatorial representatives an ex- of the Estate have filed sonal denying ception, to the indebted Estate is Company, Printing amount claimant, Eich whatsoever. from witness witnesses have

“Two testified and one Mr. Mr. Bates, David Morse and Bert stand, Wheatley by deposition, Ealph witness testified Mr. signs Tennessee. David S. Morse Donelson, petitioner Printing to the Eich Com- affidavit as company pany he has with the states that been company, manager since 1915 of the now testimony challenged under so-called not [T. A. and there- 24-105], Dead Man’s Statute C. sec. testifying objection fore an no was made party. interested since

“He states known Senator McKellar has in connection 1916 and about has furnished services only many campaigns, not his business in He also other McKellar but candidates, too. McKel- Mm introduces letters between and Senator items discussed and certain lar wherein account is statistically with, dealt correctness challenged item item. itemized account is long been a had “Mr. Bert Bates that he testified him he of Senator that visited McKellar, close friend manager Chip frequently, of Bar wick that is now he Company, this discussed Chevrolet that he has particular He states McKellar. account Senator the that bill be recommended to Senator that he say paid, him to also understood but the Court agree pay that account, or never Senator did balance. he, was liable this in effect the Senator, deposition Ralph Wheatley, was whose “Mr. headquarters in states was hired he taken, per that had Nashville at the rate of week, $100 maldng nothing of the contract do actual to with the Company, Printing deliver that he did with Rich but payments copy copy and carried check the Company. Printing Rich to the testify the custom about “Mr. Morse undertook to headquar- operation political with reference campaign does not ters. Of the senatorial course, every years, place Court six take but once point testimony it permitted for what was worth. proof claim- course, on the is,

“The burden hearing is correct, ant. if Court’s record, This point any Mc- Senator where does not disclose at obligation. pay expressly agreed That Kellar apparently arrangement either made headquarters, Gentry person be- or some other person. tween Mr. Morse and such The Court there- opinion fore the claimant has proof showing carried the burden of personally agreed, McKellar or was liable for this obligation. Ias said While, some before, there is testimony generally about the think custom, I it is campaign may known that a senatorial involve tre- money, mendous amount and while is some there proof contrary, to the the Court does not think it general is the custom for senatorial candidate, any political personally candidate, to be bound to pay political headquarters may bills that his pay. might commit itself to be difficult Otherwise, get at times to candidates run. The Court, there- proof fore finds that the burden of has not been carried disallows claim.” assignments pose questions: following The of error the (1) manager, Were the the assistant man- ager, Wheatley, any agent or Mr. or of them, the of Sen- authority, express implied, ator McKellar with or to obligate payment McKellar Senator for the in- curred debt?

(2) they authority, If or of them either had such did ratify Senator McKellar their acts, the acts of either appellant perform in their them, authorization to to postage obligation the services incur evidenced by the account?

(3) obligated pay Is Senator McKellar this account because it is the known custom in for Tennessee candi- primary pay legal obligations dates in elections, headquarters? incurred their authority necessity refer to is no There statement for the 27-303, A. sec. than T. C. other hearing, controversy with ns novo is de before judgment learned Trial presumption of the that the against preponderates Judge proof is unless correct, it. can- particular questions to a as relates involved,

The expenses obligation pay form the as such didate’s appears to be consideration, account under for the basis impression in first Tennessee. a case of correspondence Morse between is some There Company con- Printing McKellar Senator Rich letter stituting part is a first which record, of this McKellar. April to Senator 1953 Mr. Morse dated partic- significant extremely correspondence This letter, in this first ularly or sentence first statement follows: letter McKellar, K. D. “Senator ‘‘Mayflower Hotel,

“Washington, D. C. McKellar—

“Dear Hudgins saying you got Ward “I a note from print- statement an itemised like to have would Campaign. during your I am, last ing done that was you enclosing this statement therefore, explanations: following printing original was which

“Statement through February 1952 beginning ordered paid by check May $383.69, 1952 amounted you enclosing G-entry this state- I am Mr. Jim ‘Paid’. marked ment regard mailings

“In to the made, I am we enclosing yon complete mailings. a statement of the yon very glad yon If I like, will to send the re- ceipts showing mailings. from the Post Office these

“Headqnarters keep was insistent that I separate money gave they postage that me for from money they gave pay Printing me yon and from bill, the enclosed statement can see charges mailing there is a balance on the $1659.34. sending yon

“I am also an itemized statement of charges wrapping, all Tax Sales and for drayage. Parcel Post and This amounted to $13,- Headqnarters gave this 885.38. On me $12,000.00, together which left a balance This, $1885.58. Postage the balance on the $1659.34,makes total of $3544.72,from which I have deducted a check sent me on Jan. also 14,1953, contribution which $252.51, promised Headqnarters, I leaves $750.00. This balance of $2542.21. yon analyze yon

“I believe if will this statement practi- represents will find that amount $2542.21 cally I all cash. did not feel I called should be large on to take care of amount and on numerous Hudgins I have talked Mr. Ormes, occasions Ward Gentry and Mr. I Walters, have also written Mr. letters him. several but have from heard sorry am indeed that this deficit should have “I people charge I like occurred, but feel should have care of it. taken

459 “"With, very regards my "best wishes and kindest yon, yon, hoping I to hear from am, and

“Sincerely,” (Emphasis supplied.) part specifically italicized, it

Prom this letter, properly had Senator McKellar can inferred Hndgins him an Mr. Morse send Mr. to have directed in his done of the cost itemized statement question campaign. during then arises, The behalf —Why that letter such statement? "With he want did appears statement, Morse sent and after Mr. April he wrote 1953 30, on it,

McKellar had examined Printing Company following Mr. Morse and the Rich important extremely paragraph the last of which letter, arriving and the intention, McKellar’s at Senator is as follows: entire letter Mayflower

“The Hotel “Washington, D. C. “April Morse David S. “Mr. Printing Company

“Rich Street

“417 Commerce Tennessee

“Nashville, Morse:

“Dear April re- 27th enclosures letter “Your gone I the accounts. have over noted, ceived Page ‘McKellar as follows: 1 an item on “I notice Mailing, on June 27th.’ $5000.00 News Mailing, day, ‘Record and the same “And $1900.00.’ suppose you duplicate

“I account, of this Rave your page and I want also to attention to call Mailing. on Statement of You an have listed item copies of 102,311 at mailed $1534.67. l1/^ each— “Again, of McKellar 116,110 the $1287.53 Record— at It and ÍXM. printing

“It would seem from this in the matter you stamps included in the and the items $5000 $1900 charged stamps stamp and then in the account. Perhaps you if look over would $5000 $1900 you may stamps items have included there too. yon part Could tell me what of the and what $5000 part stamps? was $1900

“Taking stamps the amount of alone the Mc- Kellar Farm Letter of it would look $7659.34 as if stamps printing. cost as much total The hill for the In $13,885.38. words, other stamps as if of the seems the cost amounted half as much or a more half little than as much as printing. you again

“I wish into this would look see. I cmd specific inquiry I made when toas in Nashville as any, owed, amounts what were and I told if very surprised much there were none and I was got your saying when I letter there was a balance your go due. Please have accountant over this and you charge let me know. I did not know intend stamps. twice regard, kind

“With

“Sincerely your friend, “Kenneth McKellar Hudgins “CC: Ward

“H. S. Walters Bell”

“Sam Davis

(Emphasis supplied.) responding May to Senator 6, 1953, Morse, On April, gave com- a most letter the 30th McKellar’s analysis inquiries response plete made Sen- to the follows: ator McKellar. This letter is as

“May McKellar, K. “Senator D.

“Mayflower Hotel,

“Washington, D. C.

“Dear Senator: very your April and am

“I have letter 30th you questions pleased in the ask to answer indeed you. regard I to the statement sent “Regarding News for McKellar the item $5000.00 mailing date the 27th, this is that on June the and signify job that in our officeand does not was billed charge job was The was this was when the taken. printing the for the of McKellar and $5,000.00 was papers counting out in lots and included News placing tying a in and thereon 50, them bundles of showing slip back each bundle front on the and of they Route distribution and to were for Rural that They put they were then to be sent. were what towns put separate bags a town in and each was in mail might mailing bag. I fur- we call This what price say price $5,000.00was of ther that the Headquarters began quoted we even this before we job. say day charge,

“You that on the a same we show copies of of 200,000 $1900.00 the McKellar Rec- Although day job, ord. this is the that we hilled the it does mean that was out on same sent day tying as the McKellar News. The copies price of these 200,000 of Record were at price quoted Headquar- of $1900.00,and was this began printing. ters before we you “I sent an itemized the Post statement of all stamps. receipts Officerecords for I have the from showing through the Post Office this mail went the Post Office. The reason there in is differential postage July cost of the of on lc is that l%c mailing rate 1st, to Rural Route Box jumped say you Holders from lc to me Let l%c. separate pieces that there three were of literature printed. First News, there the McKellar then primarily there was McKellar which was Record, there farmers, then McKellar was another general pri- Record that was for distribution and marily carrying Men. to Service We were on the sending pieces out all at three literature piece the same time. We started one litera- portion piece ture State, in a one another portion piece State, different of the and the third part eventually a different the State so get they pieces voters three would but literature, get them would not all at the time. I same believe you Hudgins if will with check Ward that that will you in tell that we handled this successful manner. say regard you note “I what of the in to cost stamps amounting print- to one-half as much as frequently ing. happens quite reason This many good print government in a cases we that, postal mailing cards in which the is 2‡ cost of the per or each on whereas the $20.00 thousand, only them is about cent each. one-third my explains you you “I trust that letter to what you have I asked and can that two items assure and items $5,000.00 are which do $1900.00 stamps prices charged have that included and prices your Headquarters. quoted were the to say you regard asking “I note to if what there any you were left if over, notice, accounts will payment August given last me was on that was pay- election this which was after the when and 8th, ment was sent to me was informa- sent paid the balance would be tion that of this account money days, within the next two three as the only however, on was never done and hand, they say although thing I did is, can have pay they money perhaps other bills used it hand they take of mine later. like that could care and felt copies you I letters “I sent believe from Wheatley, Hudgins Ralph Bell Ward Sam they how- that the was correct, stated account you questions would other there are ever, if very glad try I be answer like will ask, them. Sincerely yours,”

“DSM*B (Emphasis supplied.) particularly the last letter, more

Prom this last paragraph it is wherein asserted that thereof, italicized Hudg- "Wheatley copies Ward from Mr. letters as well one from Mr. Sam ins, whose connection Bell, by proof, with the is not otherwise revealed were forwarded to Senator McKellar in and which letters compiled these men had stated that the account as was suggestion appellant correct. There is also the that glad any inquiries would be to furnish the answers to might appear which the Senator make. It does from responded record that Senator McKellar ever that inquiries letter or that he made further about that account. say

From these letter commnnications is safe to that: (1) Soon after McKellar Senator was election, inquiry Nashville and made as to what amounts were any, expenses due, if in connection with the of Head- his quarters. At that time he was told there none. were (Last paragraph April 1953, letter dated written 30, by Morse.) Senator McKellar —Exh. 3,

(2) by Hudg- Senator McKellar was later told Ward campaign manager, his assistant ins, there unpaid Printing Company balance the account Rich managers which had been incurred order Headquarters. (First paragraph of letter from Morse.) Morse to Senator McKellar —Exh.

(3) McKellar wanted an itemized statement of this account.

(4) Mr. Morse itemized statement sent an to Senator accompanied by giving a minute de- McKellar, letter explanation of the account. tailed (5) responded, only questioning Senator McKellar part correctness of which the account showed postage appellant; payment that letter of certain replied immediately explaining part of Mr. Morse postage had the account Senator McKellar questioned.

(6) no Senator McKellar made further assertion reply thereafter incorrectness nor did he account, April 26, letter 1953. last of Morse this dated (7) any The record further does not show communi- by otherwise, letter or Mr. Morse between and cations, October Senator McKellar before the Senator’s death on 27, 1957. proof undisputed print- firm

The had this same performed ed similar services material and campaigns previous for Senator McKellar in his six posi- period stretching years. over of 36 There is no a proof, any of tive the status of the accounts of however, any previous campaigns work in of the such —that not. there was deficit such accounts is, whether a of these that in each remembered, It be however, must prior campaigns successful and was McKellar Senator by reasonably contributions be assumed that can willingly ex- more made such be much friends would penses been had one of a successful than who candidate nothing in- record, however, in There is defeated. paid had all McKellar’s friends dicate that Senator campaigns. expenses prior why any explanation no suit was absence of In the appellant by dur- against brought McKellar Senator receipt ing years after the he lived the four easily might inferred Morse, it be Mr. letter last personally appellant the Senator did not consider opinion, such action In our for the account. liable questioned fully explained about Morse. He was Mr. to whom asked this credit whether was extended and brought against Gentry, he had ever suit Mr. Mr. Wheat- ley also whose had Herbert name been Walters, mentioned in said had not, he he evidence, added: I McKellar, sir. didn’t sue either.”

“No, And was then asked and answered: you

“Q. Are is in this claim the nature aware against lawsuit? This claim estate is a suit on you you this account. Are that! aware A. Will explain something allow me to there? you, long

“Q. sir. A. I I Yes, As told had friend- ship with Senator McKellar. I would have never brought against suit him for if account; Sen- large ator McKellar had died and not left estate, I would have never filed it.” Hudg- In same that he conversation said that Mr. Ward previous Attorney, was ins at time that U. Dist. S. and to that service had been Senator McKellar’s official sec- retary. explained He further the close connection be- Hudgins any tween Mr. Senator McKellar, and without objection appellee, whatever from counsel and he was then asked and answered: campaign

“Q. Mr. in Senator McKellar’s Morse, you organization of 1952, are familiar with the and operation headquarters during campaign? of his that you describe and Will that tell how it involves you gen- what have testified with reference to Gentry eral rule. A. I think Well, Mr. was named manager. campaign

“The Court: Mr. who? Gentry, although “The he Witness: James Hudgins, manager was Mr. Ward name, campaign. I that think, directed most of Also, campaign, although headquar- he wasn’t active at ters, Ten- Morristown, was Mr. Walters, Herbert Ralph Wheatley publicity nessee. Mr. man, was copies the man who wrote these various all publications. Wheatley present Mr. would me the copy, bring either it to I the hotel me, went got it. Before work done, of the was always headquarters me assured that the had dis- Gentry, Hudgins, cussed Mr. it, Walters, Mr. Mr. forthcoming. money for would be it “The Court: is he? Who publicity Wheatley,

“The Witness: man, Mr. Your Honor.”

In addition further be statement it can assumed Hudgins depended upon by that Mr. Senator Mc- headquarters handling Kellar to direct because Hudgins, according was he, to the letter Mr. —Mr. Morse, whom Senator McKellar had sent word to have an prepared. itemized statement of account Further- more it is observed that when the Senator wrote explanation Morse for an the account, he, copy Senator, sent carbon letter to Mr. Hudgins, Ward Mr. H. S. and Mr. Walters, Sam Davis proof very Bell. It obvious from this and other strong corroborative that the circumstances, Senator was expecting Hudgins any help getting proper in him to knowledge it is correction a matter of made, common that Mr. Walters was at time the State Chairman of expense Executive Committee, Democratic with whom the proper or be filed. It seems statement liad been towas requested an itemized to assume when the Senator only one of account, statement of that was done for it purposes, two as follows: obligated He

1st. wanted it because he felt like was he pay correct; to it and sure it was he wanted to be purpose,

2nd. If that was not his he wanted so expense comply filing could with the law relative account. applicable expenditures legal-

The law in candidates’ requirements regard primary ized in elections and the expenditures, filing in- such statements of itemized cluding is a state- which that of a United States Senator legalized primary, wide is 2-2101 and found Sections pertinent parts of which 2-2112, A., T. C. inclusive, are: provided: Section 2-2101it

In primary “Any person who * ^[*] * election shall be a candidate any state * * * before office, shall, * ** (5) days (10) five nor less than not more than ten * * * * * * * * * days primary a state- before such file writing, subscribed and ment which shall be sworn notary public by such candidate, to before money or other all shall forth in detail sums set expended thing or disbursed, contributed, of value knowledge promised by to the best him, person behalf, on his belief, * * *.” his nomination secure required to be filed 2-2103, In Section statement with:

469 primary, chair- with the “In case of state-wide a * * party; *.” man of committee of the executive provided: it is In 2-2104, * * * days any thirty (30) “Not more than after * * * any campaign

primary or committee election, any having charge candidacy of individual, of * * * person expenses managing paying or or * * * # * * any campaign, of a for the nomination * * * in same officer shall make out a statement provided for the candidate manner and form as that * * * filed officers in secs. with the 2-2101-2-2103, provided in sec. 2-2103.” provided a it In Section that there shall is 2-2105, County in than 12 months and not more $5,000 fine law. Jail, both, or violation provided: In Section it 2-2106, any case no such filed cam- “In statement be paign charge having committee or individual of the any candidacy person, then the candidate shall that re- himself file statement in such addition quired him above.” lawyer great had who us, therefore,

It seems to years, engaged in the States served United Senate period, requesting primary during in six elections Headquarters, expenditures of his could statement expected therefor have had mind that he felt liable pay comply order it in with off, he wanted proof record there had There no in this whether law. statutory any compliance provisions. these been being therefore, must assume, Such we case, Headquarters had com- and his both McKellar with, plied which eliminates consideration law, given to he state- fact that he itemized wanted the purpose. ment for that say Legislature passed

It fair to seems that when the requiring an Act of his to file a statement candidate Headquarters manager expense, in in the his event charge policy did which not do this so, established require would has a determination that when a candidate charge campaign manager placed selected a him in and Headquarters, manager his made he has such agent Headquar- of the business the conduct of that assumption ters. stand- Whether or not, correct ing opinion of the facts of this alone, we are that the support case will McKellar the conclusion that Senator obligated expected pay at that felt himself time any part remaining unpaid this account, or of it when request- an examination of the account had been made as by his ed letter to Mr. if there were Morse determine duplicate charges, postage, such as which he mentioned. question prevails of whether a in

On custom knowledge State of such common that when a candidate legalized public party primary for a office in a selects campaign managers puts charge in them of Head- quarters, legal expense he becomes liable for the incurred upon in his such custom relied as in this behalf,—-when proof ease, how much does take the absence of re- proof prima buttal to establish a facie of such case custom?

Looking to the evidence in the case, now the witness printing company David has been with this Morse, S. years age 11 as he and was far back 1915 since was operation in the section of the of such business, executive pres- interruption until the without has continued describing custom, and the business ent. In and answered: asked your what business, nature of

“Q. is the What you A. han- Morse? We do, kind of business do types printing, handle practically we dle all long years period have publications, we over political printing. great deal of handled a doing political you since been “Q. Have Even that time. or 1916? A. before you come ac- have be connection, In that “Q. political operation quainted candidates political Yes. offices? A. efforts to obtain their ‘ ‘ campaign headquar- through operate they DoQ. ters? A. Yes. knowledge your you own how

“Q. know Do organized headquarters general and in are how these usually they operated? is done is what Well, A. are headquarters up in his some sets candidate appoints campaign man- he as a rule, and hotel, appoints perhaps ager, a treasurer of the and he writing appoints people campaign, to do the and newspapers handling placing in ads and perhaps contracts with radio stations make stations. and television you campaigns, political in In these

“Q. printing work how 1916, called to do since been have company generally your been contacted and em- has ployed to do work? usually pub-

“A. is is that either What done licity manager campaign get man or the will in our contact with officeand ask us come they copy prepared give look at the have them print an estimate on what it cost to certain could printed Usually, matter. when that is done, rely upon we the fact course, candidate although being behind the situation, done through manager through publicity man.

###### you long “Q. Morse, how did know Senator up McKellar the time of his death? A. I met Sen- ator in his first in McKellar 1916. you printing

“Q. Did do in work of his cam- paigns every campaign before 1952? A. Yes, sir, he had. your

“Q. In did firm handle account of printing McKellar connection with done campaign? on his behalf in that A. Yes, sir. you “Q. do Did that work on a credit basis? A. proceed- it was Well, credit to this that as extent, we payments work, ed with the there were made. Of political printing, great course, runs into a money, especially mailing deal of do when we pay postage, you and I think will notice our state- payments every ment and that these were made, oh, days week or ten or more. your

“Q. Morse, Mr. what was the character of printing thing done?' A. was main Well say was done was small wonld three news—I —tab- newspapers. loids in I remember, near as As one things them was Senator McKellar’s record people he had done that vital were of interest piece of Tennessee. was Another one literature on the farm I situation, it, remember pamphlet third one Gore’s record Congress. printings, publications, “Q. Were these these done publicize McKellar, McKel- or Senator headquarters They publicize ’s lar ? A. were done to Senator McKellar. Actually,

“Q. Senator McKellar and his head- quarters thing? one and the were same

“Objection and answer. no

[******] entity “Q. What business was the McKellar Head- quarters? corporation partnership, Was it a or or what was it? A. I couldn’t describe it as either a partnership corporation. headquarters A is usu- ally up by set the individual candidate. headquarters,

“Q. And was this the McKellar Headquarters, up by set A. Senator? I assume my experience headquarters. so. That with all you many campaigns, “Q. Do have idea how political you campaigns, different have done great political work in? A. handle We deal printing, might say and I we handle for both sides. campaign, For in the instance, McKellar we handled printing, Senator McKellar’s and we also handled 474 printing.

Mr. In that we Gore’s same printing handled Governor Clement’s Governor Browning’s printing. experience

“Q. had in it? A. I Ton have vast perhaps experience think we have had more than printers political some of other have had with printing, very complete mailing and we a room, have printers which most do not and therefore are have, shipping able to take care of a lot of for them and mailing. you

“Q. Yon said for handled these matters Sen- previous campaigns ator McKellar all of his since campaign, they 1916. Other than did ever you any up owing money? wind A. not as I No, sir, remember. explaining a Morse further between difference

party primary general election election, said: * * * primary prop-

“A. is different election altogether your general osition from In election. your your campaign election, handled the State Committee, whereas in the Democratic Executive up headquar- primary, each candidate sets his own ’’ ters. examination, And re-direct and an- asked swered : you did look to in

“Q. credit Senator Mc- Whose campaign in 1952? A. In the case of the Kellar’s Headquarters, McKellar I Senator McKel- looked to Headquarters, I lar; and the case of Mr. Gore’s looked to Mr. Gore. got

“Q. In the McKellar, ease who benefit of the A. I matter? assume Senator got may. say McKellar I the benefit. Let if this, me We have had cases where men defeated. Of were very easy course, when a man elected, it is pay campaign printing, him to whereas if he is pay. it is defeated, a little bit I harder can recite you numerous cases men where have been defeated, they paid gave where afterwards off the bills and their notes for it in few cases. some Sometimes years pay they took them two or three to it, but ’’ paid you it. If like, I some can recite of the cases. special Bates, Mr. Bert a friend McKellar, of Senator campaigns had who been active several of who and relationship knew of the between Senator McKellar and Company, Printing Mr. Morse of the Rich said he was Compauy Printing familiar with fact that the Rich printing campaign did the 1952 of Senator McKel- very lar in he, himself, was active and that he had a discussion with Senator McKellar about account. This witness was asked and answered: you? What did he tell A.

“Q. at Well, time, practically of course, I visited once or twice week in a hotel, sometimes more. And, naturally, having been in the as I close and as I was, close as was to Senator I McKellar, practically knew all about and business what was going but told on, he me a he had received bill from Morse. don’t Dave We refer to him as the Rich Printing Company, because Dave and the Senator myself have been almost as close as the Senator and period years, and over Dave Morse has done a great for said lie deal of work so received us, lie he bill from he it, Dave and lie didn’t think owed state- sent it an itemized Dave; back to wanted he verify ment The so could the bill for. what he was bill said came over bill and down he went great postage the bill said about had a deal of postage half the other pay ought I Ward advised the Senator he the bill. Hudgins ought pay advised the the bill. Senator he headquarters should The Senator maintained paid have the bill. deny never

“Q. bill1? A. He Did he owed the pay agree I denied He it. it to never did me. paid He was don’t have it. know whether he would pressured. Nobody Sen wanted offend Nobody ator. would him. offend experience have in all kinds of cam- “Q. You had paigns, you not? A. think I have I have.

“Q. Tennessee, State of in addition In the campaign? campaigns A. Senator And McKellar’s locally. responsible party in

“Q. as Who looked to headquarters any political campaign is estab- where Well, course, think the candidate lished? A. I do to. man would be looked would ultimate be ran for Overton, when he illustration, As an Watkins Mayor^ paid accounts, our bills settled our and —we days got sixty I think, bill for later, $265, we but Kelley-Jamison Company. We weren’t from the paid bill. it. Of Watkins course, familiar part. obligation an on his felt it was He your experience, “Q. Prom in custom they cases of this I kind? A. think it wonld be. If money certainly had the then it wonld be.

[******] ‘£ say The Witness: I like wonld this inasmuch injected Ias have been into I am this. somewhat position bystander of an innocent in this matter. thonght my I have mnch of as Senator McKellar as own father. is as devoted to as if was his He me I people. own I son, and have talked to I I think McCloy talked to Stnart and Jndson. I have Nickey. I talked with told both Sam and Jndson bronght Stnart I didn’t want to see this matter into really I conrt. think owed the hill, and thonght paid I it should he and settled this, without embarrassing it is rather tome be here yon testifying. I tell that.” analysis

In our facts and circumstances surrounding the involved transaction, hereinbefore proper legal in an stated, effort reach a conclusion, governed properly the rules which are seem to be we specifically opinion set forth in of the Middle Division of this Court the case of Rural Educational App. (certiorari Ass’n v. Tenn. Bush, 34, denied Feb ruary 1957), (2d) 298 S. W. and the 8, 766, citations 761, there as follows: enumerated, ‘

(1) 'Agency may proved by be circumstances parties. conduct of the evidence Ham- Company, App. mond v. Herbert Hood 31 Tenn. (2d)

221 S. W. 98.”

478 with, knowledge ap agent

(2) did “What proval principal evidence is circumstantial agent do. Boillin-Harri of what was authorized to Company Company, 342, 182 Tenn. son Lewis & v. (2d) S. 187 W. 17.” attempting person

(3) proof to “Burden of alleged agent agency, in fact establish an principal agent alleged authorized and was Langford, 190 Tenn. do act v. to done. Cobble (2d) 230 194.” 385, S. W.

(4) agency be has been created an “Whether parties as the relations of the determined agreements acts, their or relations fact exist under parties is an there whether the understand Company, agency not. Coach or Smith v. Tennessee (2d) 194 867.” 183 S. W. 676, Tenn. agent principal

(5) an “A is bound if acts within McCoy authority. apparent v. or ostensible (2d) 1020. Tenn. 145 36, 177 S. W. Willis, Supreme approved Court statement “Our Authority’, ‘Apparent or Ostensible the rule Railway 238, Pickle, v. Tenn. Southern Co. 677: S. W.

“ agent ‘Apparent authority author- in an is such agent knowingly permits ity principal as the agent posses- he holds the out as assume appears authority sing; as he reason such have authority authority has; which he such actual diligence reasonably prudent using man, as a principal’s would conduct, in view of disci'etion, agent possess. suppose naturally Ostensible

479 authority authority principal is such as a intention- ally by ordinary or want of or allows a causes care person agent possess, third to believe the and in to jurisdictions by some it is so defined statute. Ostensi- authority agent ble may to as act be if the conferred principal affirmatively intentionally, or lack ordinary persons care, causes or allows third act apparent agency. appli- on an It is essential to the general important cation of the above rule that two clearly (1) facts principal be established: That the agent public possessing held out to the as suffi- authority particular ques- cient to embrace the act in knowingly permitted having- tion, or to act him authority; (2) person dealing such and agent acting good knew the facts, and, faith, agent had reason to and believe, believe, did that the ” possessed necessary authority.’ Applying foregoing rules to the facts and circum supported opin stances of this we case, would be Appeals ion Court of of Louisiana in the case of Sharp, Rehm v. if 1932, 144So. we hold 78, 79, that, based proven on such facts and circumstances as are in the manager instant case, candidate a state-wide, legalized primary agent election such candidate. The circumstances facts of that will case best be by quoting opinion: understood from the Sharp “The record Mr. Clark Mr. shows friends, were and had had business transactions for prior years several to the time Mr. ran Clark appears Sharp It Governor. that Mr. convinced qualify Mr. if he that, Clark as a would candidate splendid Governor, he would have a of win- chance 480

ning. be- discussion the matter under While plaintiff prevailed upon Sharp tween them, Mr. Sharp La., Iota, automobile to drive use September a distance of 5, 1931, and return on September miles, 29, 1931, and on Hammond 8, 1931, miles. On October distance return, candidacy formally announced Clark manager. Sharp campaign There- Mr. his named as plaintiff his auto- in after, 15, 1931, on October the Sharp Holden to mobile from drove Mr. New Orleans Rouge, of 350 Baton a distance La., return, and and to Holden miles, 26, 1931, and on from October Rouge, of miles. It was also Baton a distance days plaintiff in for shown worked nine upon of Mr. Mr. behalf of Clark authorization ’’ Sharp. brought against Plaintiff Rehm suit both Clark salary Sharp automobile in an action of debt (cid:127)expense campaign. in incurred connection with Clark’s jurisdictional Sharp question as A to was invoked prejudice. De- suit as him was dismissed to without grounds upon defense: fendant Clark relied three of automo- first two at time “First, that, respectively, trips, September bile 29,1931, 25 and campaign Sharp employed as his Mr. had not been employed manager until October not so secondly, plaintiff work for 1931; to undertook polit- anticipation securing the defendant Clark candidacy employment have ical Mr. Clark’s should thirdly, plaintiff’s remunera- been successful; successfully Sharp upon tion was conditioned Mr. raising do.” fund, which failed judgment dismissing There was a on the merits suit plaintiff appealed. proved by and the Plaintiff own employed statement and that of mother that he was by Sharp campaign manager was the who for Clark. The Appeals part Court of Louisiana held that that prior appointment the claim for services rendered Sharp campaign manager as for Mr. could Clark, prior Sharp not be allowed because that date no had authority agent as The then Clark. Court said: Sharp, campaign manager,

“But since Mr. had implied authority plaintiff employ the actual or candidacy to render services behalf of Clark’s after and to 8, 1931, October incur ex- reasonable penses traveling, for automobile services in be liable defendant Clark would indebtedness arising subsequent to 8, 1931, October unless it can under second or third be said, defenses, that the ’’ defendant Clark is liable. upon of service based the defense a On consideration anticipated employment in the event Clark of suc- said: Court cessful, the impressed with the are not statement

“We of Mr. Sharp plaintiff solely that the rendered services securing employment purpose of future for the of political Mr. nature in the event Clark was a elected testimony His of the state. not Governor corrobo- point, on Mr. Clark who was unin- rated subject. special This is a on defense, formed the proving burden of a defendant bore the and plaintiff preponderance as evidence, and, the the contrary, his mother both testified the we and defense must second fail.” the believe campaign question payment in funds On the event candidacy were the Clark, contributed Mr. Court said: defense, reference to the third Mr. Clark

“With plaintiff’s not claim testified that he know the did early part January, 1932. until some in time agreed plain- Sharp had with testified that he Mr. paid day tiff that be a for actual services he would $5 in the and for use of rendered automobile campaign he collected, that, event fund was and in his efforts funds, failed there secure any money pay plaintiff’s available to was not plaintiff again claim. The and his contra- mother they Sharp’s although admit dicted Mr. statement, making that he did tell them was efforts to secure campaign expenses funds for from those who were candidacy of Mr. interested or advocated impressed this defense, Clark. are and We it seems to the second fact be inconsistent with plaintiff’s to consist of defense that reward was political appointment in the event Clark some was elected Governor. plaintiff therefore conclude en-

“We titled recover for his services rendered on Cctober 17th and 15th, 16th, 18th, 26th, 27th, October day, salary at the rate of or a He 28th, $5 $35. trips entitled is also to recover automobile 15th Holden 26th, October from New Orleans to Rouge, totaled 620 La., return, and Baton cents-per aggre- which, at rate of 6 miles, mile, gates making thus $37.20, total of both items $72.20.”

Pending appeal, testamentary had died, Clark a duly qualified, proper by proceedings executor was party Appeals was made a to suit. The Court of set judgment aside the Lower Court and rendered judgment plaintiff, in favor of the for the full amount sought compensated by of services rendered be for, plaintiff appointed Sharp after Rehm as was Clark’s campaign manager. upon theory

Defendant has relied a that the headquarters charge of Senator McKellar in of Mr. Gen- try, campaign manager, Hudgins as as his assistant Wheatley, publicity did who most of and Mr. work, voluntary was a director, no more than association with- any by-laws, regular meetings authority out or bind they In McKellar. counsel’s have brief, said: nothing

“So, in this there is record, indicate that headquarters the Nashville with which claimant dealt loosely anything voluntary more a than formed, by-laws regular meetings without association, ’’ given authority to no which had one to act.

They principally rely upon the case Bloom v. Vauclain, 460, 329 Pa. 78. We have read all A. of the authorities cited defendant’s counsel and do not we present parallel of them believe or a criterion litigation the instant record us, which before must agree upon decided. with them that cases be We they rely correctly upon were decided based agree but eases, facts those we cannot that candidates political party nomination within a in an election political party which must decide nominee for that by subsequent general put be elected election can be organized same in the “associations class and clubs which, objects political”. or mast for are social We also proof no whatever was the in mind that offered bear bat the instant it mast not be over- case, defendant pablicity procared, the director was con- looked campaign manager, to said the as he with, tracted pablications necessary prepare for the docaments and per positively salary at a week. He candidate fixed the campaign manager testified that the contracted with the Printing Company, printing, prep- plaintiff, Rich for postage. proven necessary It is to mail and aration on two occasions Senator Mc- contradiction that withont complimented he him material which had Kellar Company Printing printed prepared which Rich had public. would be insult to and mailed It an say intelligence McKellar to that he did not of Senator put being out know the kind material was candidacy. his behalf it is contradiction that testified without

Mr. Morse party primaries candidate, for custom in these organization in his such as McKellar had an legitimate responsible headquarters, to be ex- penses in connection therewith. incurred agency, question which the learned from the

Aside opinion, Judge it in his delivered seems discussed Trial thought upon conclusion what that he reached proof upon general such a than rather custom regard, In that he said record. : as in this exists custom * * “* general think it is the does not Court political any candidate, a senatorial custom pay personally be bound bills candidate, may headquarters commit itself to political get might at be difficult times to pay. Otherwise, candidates to run. The Court, therefore finds that proof the burden of has not been carried and dis- allows this claim.”

Might legal- it not be said that in event a in a candidate primary responsible ized election is not to be for the expense postage necessary proper for a campaign, such are basis of the claim con- under might procure proper sideration, “it be difficult” to the publication qualifications, platform of the candidate’s his past people express so record, that an could the intelligent personally acquainted choice who were not capacities with with him, his characteristics, and the record of such candidate, and interest of his arouse the supporters greater in effort his behalf. supra,

In the case of Bloom v. in Vauclain, the Court outlining facts the said: appellee request

“Here served as treasurer at the of a friend of candidates, of the and held the one by position mutual consent rather than His election. merely campaign duties were those of a custodian signed disbursing upon contributions, them vouchers by publicity the chairman director. He had no authority to order not done, to be and could publicity liable director, held for the orders of the be any more than a could held liable where candidate be part authorizing he had no in done. The the work finding appellee of the court below that took no part campaign active no over the and had control by is well conduct, its substantiated the record.” appear primary does a or It not this was whether campaign, appear general there election but it does that political voluntary organized which was committee sponsoring particnlar candidates, election of a set showing that either bnt no whatsoever there manager publicity appointed aor candidates no whatever between director. There was connection pay- suing litigants plaintiff in that case, is, any printed particular candidate. ment matter and clearly not treasurer of fund was This a contribution by any so far as the or candidates selected candidate upon payments proof only made concerned, and signed by publicity of that com- chairman vouchers publicity it, Nowhere does either mittee and the director. appear necessary implication, expressly any expense authority to contract treasurer had printed said service, and the Court matter or other opinion beginning very that: of its personally “Appellee authorize did Vauclain burden was therefore done, this work to be purchases appellant made were to show authority. agents appellee, It appellee appeared so-called treasurer of the that was appellant campaign to endeavored committee purchases.” to the show he assented in was de- in that correct the case Of course Court organization as an the same termining was that that by governed same the a would club and be association illustra- it is to the case, read that similar As rules. we testimony gave effect his in that Mr. Morse tion party organization general assumed in election that a campaign expenses in responsibility of the nominee. of its behalf may agency created be is that an

It axiomatic may person law- a that whatever lawful act acting fully right behalf, in own and Ms do, if in Ms own agent. may delegate authority is It also to an that lawfully delegated authority cannot he that axiomatic policy, public opposed nor illegal, which immoral or delegate personal in its nature, one an act which can personal perform as-.designating agency to a an such duty personal an elected officer or 'a trust. Of course delegate has to which he been hold the office cannot one to statutory authority nor do, so elected in the absence for him. to cast his vote judgment of feel constrained reverse the

We following reasons: Lower Court for proof McKel- The is uncontradicted Senator 1st. manager acquiesced appointed campaign in or- lar a headquarters; ganizing the manager right a to incur on behalf

2nd. had That necessary conducting expenses principal campaign; by postage supplied printing matter and the

3rd. The company cam- was contracted according manager, paign record; to this scope authority of his so to do. 4th. Such opinion Therefore, are we agent doing. in so the act of was bound McKellar presentation by proper been If it could have determined headquarters that the was volun facts of the tary organization, this record nowhere discloses, upon supports the conclusion based think this record we including passing the letters between circumstances, the company after the McKellar, and Senator this preponderance proof election was of a over, of in favor of Ms of ratification the acconnt. opinion regardless

We are further of the might proven, what proven from have been what was testimony support in the of Morse in of the claim of Company, Printing preponderates the Rich in favor of the custom in a Tennessee to candidate in the effect that primary expenses legal election is liable for incur by campaign manager manager, red his where such by selected not be candidate. Of course he would merely accepted manager liable if he the services aof campaign, put by others, there unless thereafter expressly by implication expenditures. ratified such opinion,

areWe also of stated, as hereinbefore that the law of the State of Tennessee re relative quirements managers of candidates and their expense sup file forth, accounts as set hereinbefore ports public policy making pri in a candidate mary expenses legally election liable incurred headquarters. Ms opinion certainly

It our this record—and we have no other record shown the defendant of acts judicially candidates or we know— could justify would no other than those conclusions set herein out. judgment

Therefore, the Lower is re- Court judgment will in this versed be rendered Court over- ruling exceptions sustaining filed the claim, proper the claim in the $2,542.21 as filed amount of as a against K. claim the estate of D. McKellar, deceased, paid accounting be allowed as such and final together proceeding, costs of executors,

489 in of the view no will be allowed tbereon but interest impression in is a first Tennessee. fact this case of This will remanded to the Probate Court case be County Shelby where the administration the estate of may in D. concluded accord with K. McKellar be there opinion judgment of Court insofar as this and the this litig’ated is claim here concerned. Bejach, concurs. J., 959.)

Carney, (330 (2d) S. dissents. W. J., disagree respectfully (dissenting). I CABNEY, J., judgment majority opinion with the and would affirm the disallowing of the the claim. Probate Court company that his It is true that Mr. Morse testified primary always payment in to looked the candidate contrary. proof to was introduced no elections opinion I am evidence is not suffi- However, usage prove or establish or existence cient upon. insisted custom only give any instances did Mr.

Not Morse charged expenses companies had other campaign manager him candidate authorized company gave instances in which no other self but charged printing to the himself. He candidate such had give merely instances he could some where stated requested paid if so had deficit candidates defeated 1890, v. 89 Swan, 434, Oil Tenn. Co. to do. See Standard A. 10 L. R. 366. 1068, S. W. 436, 15 usage general rule in to establish or order cus- As a satisfactory. be thereof must clear tom evidence particular especially im- is a one it custom When portant proof that the In clear and conclusive. order be custom, usage prove establish a not sufficient to Usages isolated Jur., instances. Am. & Customs, page Weight Sufficiency & Section of Evidence. 56— See also Greenleaf on 15th Edit. Evidence, II, Yol. Sec- tion 252. required universally it is

Also almost order hold person alleged usage, a bound an custom or that he implied knowledge have either actual or of such custom; appear knowledge if it does not that he actual of it, had usage general or custom should one so he be that will presumed particular knowledge be have of it. to More person charge- rule to that stated be before can be usage, practice question able with a custom or in must knowledge be so to notorious as affect him with itof presumption and raise that he dealt with reference to knowledge or he must be to had it, shown have actual Usages page it. 55 Am. & Jur., Customs, Section 282, Usage Knowledge of or Custom. 21— represented Senator McKellar the State of Tennessee approximately forty in the United States Senate for years. During time made that several he state-wide campaigns. In some of these Mr. an races Morse was supporter active of and worker for Senator McKellar. campaigns In none of the former McKel- Senator pay any printing lar ever asked Mr. bills Morse campaigns. arising explained out of said Mr. Morse by saying campaigns in fact those McKellar Mr. winning won that it trouble is no candidate campaign expenses paid. have there was no Hence, deficit until Senator McKellar was defeated after 1952. McKellar was himself testified that Senator Morse

very campaign separate keep from Jais careful funds personal campaign endorse a funds; lie would not even meticulously some insisted that contribution check but person campaign This habit on active do so. part suggests also Senator McKellar us liability expenses separate considered apart liability. personal from his opinion I is not liable am that the

Henee, estate theory usage custom both the evidence because is insufficient there to establish the custom and because proof knowledge, is no McKellar had actual implied, alleged of the custom. liability of the for the to the estate Now reference principle agency, general I debt under law agree App., Sharp, Rehm La. 1932, that the case of v. opinion supports majority is con- 144 So. trary to this dissent. Supreme great Loui-

With deference to Court of my opinion greater deference to siana and even of colleagues, question of a I soundness such learned knowledge general that a of rule. It is now matter primary public for either in a office, state-wide race many, many expenditure general requires of election, through many different hands and thousands of dollars many purposes. different appear- Campaign television buttons; literature and newspaper advertising; printing job ances; time; radio present mailing all on the level case, state up greater portion probably the total cam- make expenditures. paign managers campaign

In addition we know that state appoint campaign local or area in turn chairmen who expend expenditure or authorize the sums considerable money campaign purposes. Oftentimes these ex- penditures by upon local chairmen are done express authority state For chairman. campaign headquarters instance the state often furnishes headquarters prepared to local material to be used on newspapers. local local and in radio, television local signs Street banners road sometime furnished are headquarters from state local or area chairmen be expense. installed or at local erected general knowledge I think it ais matter of that the money many expenditures for these both on the state usually by level and on the level local raised interested only percentage workers and small of the cost of a paid by state-wide race the candidate himself. Obviously, supervise the candidate himself cannot all many many of these activities and not others mentioned though they he knows above, intends will be candidacy. my him in of his done for behalf In humble public opinion not be in it would interest to saddle every upon potential candidate for state-wide office a many liability possi- so thousands of dollars and the bility multiple against claims him with such limited protect indemnify opportunity against himself liability. such my opinion

Finally, testimony it is that the affirma- tively that at the time Mr. Morse shows contracted for looking expecting to or pay any printing. of the cost of McKellar It was looking to be a cash transaction he was to the cam- along Gentry, pay Pirn eacli week manager, paign Mr. testimony think the progressed. I Further, work as the fully this understood indicates of Mr. Morse only contributions from was to come cash to under- expecting McKellar that he was many into entered guarantee contracts write Printing Com- Gentry including with Rich one pany. properly Judge Probate His Honor the think I

Hence, claim. disallowed

Case Details

Case Name: Rich Printing Company v. McKellar's Estate

Court Name: Court of Appeals of Tennessee

Date Published: Feb 25, 1959

Citation: 330 S.W.2d 361

Court Abbreviation: Tenn. Ct. App.