Southgate v. Atlantic & Pacific Railroad
61 Mo. 89
Mo.
1875
Check Treatment
Wagner, Judge,

delivered the opinion of the court.

The plaintiff, an attorney, brought this action to recover the reasonable value of certain professional services, аlleged to have been rendered defendant, and of certain other services *93rendered another corporation, which it is alleged, the defendant promised, after the services had been rendered, to pay.

The first count in the petition claimed fifteen hundred dollars for services performed, ‍​‌​​‌‌​‌​‌‌​‌‌​​​​​‌‌​‌‌​​​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​‌‍and for counsel and services as an attorney at law, rendered at defendant’s rеquest.

The second count claimed the sum of one hundred arid thirty dollars for legal services rendered the South Pacific ■Railroad, whiсh it was averred the defendant assumed and promised to pay. The answer was a denial of all the allegations contained in the petition. The bTll of particulars accompanying the first count referred to certain specific cases attended tо, and stated a demand of payment for counsel and services as an attorney generally from March 15th, to October 15th, 1867. The bill of particulars to the second count showed the items for which the services were claimed. The plaintiff gave testimony in his own behalf аnd stated that the services were performed, and that he was employed by the Superintendent of the road, and that he at differеnt times corresponded with the various officers and managers of the road, and that they recognized him as an attorney and acquiesced in his employment.

He also proved, by a witness, against the objection of the defendant, that the services of a goоd attorney at the place where plaintiff was, would be reasonably worth two hundred dollars per month. The evidence in referеnce to the second _ count showed that the plaintiff was employed by a local agent of the South Pacific Railroad; but there was no evidence to show any promise lw the defendant to pay the debt.

The court instructed the jxtry that if they found that plaintiff was in the service of the defendant, and in the service of the South Pacific Railroad, in manner as alleged in the respective counts of the petition, ‍​‌​​‌‌​‌​‌‌​‌‌​​​​​‌‌​‌‌​​​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​‌‍they should find for plaintiff the reasonable worth or value of the services, with interest at six per cent, from the accruing of the indebtedness. There was a verdict and judgment for plaintiff on both-counts.

It is insisted by the defendant that before the plaintiff could recover, it was necessary for him to show that the officers *94who employed him had authority from the corporation to make thе employment. We think differently. The evidence shows very clearly that the defendant availed itself of the services of the plaintiff, running thrоugh a period of several months, with a full knowledge of all the facts; and if there was any defect in the authority conferring the original appointment, this would amount to a ratification.

The rule is that not only the appointment, but the authority of the agent of a corрoration may ‍​‌​​‌‌​‌​‌‌​‌‌​​​​​‌‌​‌‌​​​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​‌‍be implied from the adoption or recognition^ his acts by the corporation. (Kiley vs. Forsee, 57 Mo., 390.)

Managing officеrs of corporations have power to employ attorneys and counsellors, without express delegations of power, or formal resolutions to that effect. (Western Bank vs. Gilstrap, 45 Mo., 419.) In discussing this question in Am. Ins. Co. vs. Oakley, (9 Paige 496) the Chancellor said : “It is a matter of every day occurrence for the president and other head officers of corporations to employ and retain attorneys and counsel to prosecute or defend suits, or to assist in legal proceedings in .which the corporation ‍​‌​​‌‌​‌​‌‌​‌‌​​​​​‌‌​‌‌​​​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​‌‍is interested. And I doubt whether it is usual for members of the bar to take the precaution to inquire when they are thus retained, whether there has been a formal rеsolution of the board of directors authorizing their retainer in the case.”

The evidence of the witnesses to the value of the services was improper. He testified that the services of a good attorney would be reasonably worth two hundred dollars per mоnth. His attention should have been called to the services rendered, and his opinion should have been asked what such services wеre worth.

The only evidence introduced by the plaintiff to show that defendant was liable for the debt of the South Pacific Railroad Company, was the second section of the act of March 15th, 1871, which enacted that, “ on the said two companies filing, in the officе of the Secretary of State, a certificate ot their respective corporate seals, and the signatures of thеir respective presidents and secretaries, to the effect that they *95have availed themselves of the privileges of this ‍​‌​​‌‌​‌​‌‌​‌‌​​​​​‌‌​‌‌​​​​‌​‌‌​‌‌‌‌​​‌‌‌​​‌‌​‌‍аct, such merger and consolidation shall ipso facto become complete, and from henceforth the Atlantic and Pacific Railroаd Company shall, by that name, have and possess all the rights, powers, privileges, immunities, advantages, franchises and property whatsoever of said South Pacific Railroad Company in the same manner and to the same extent and effect as that company had or possessed, or but for its said sale and conveyance might have had or possessed, provided, that the before mentiоned Atlantic and Pacific Railroad Company shall be subject to all the duties, liabilities, obligations and restrictions resting on either of sаid railroad companies before the consolidation herein referred to and authorized.”

The defendant would be liable fоr the debts and liabilities of the South Pacific Railroad if the consolidation authorized took place. But we cannot take judicial notice of the fact that the companies accepted the act and consummated the consolidation, and there was no proof on the subject.

The court erred in instructing that the plaintiff was entitled to six per cent, interest "from the time that thе indebtedness accrued. The statute provides that creditors shall be allowed to receive interest at the rate of six pеr cent, per annum, when no other rate is agreed upon, for all moneys after they become due and payable on written contracts, and on accounts after they become due and demand of payment is made. (Wagu. Stat., 782, § 1.) The suit was on an accоunt and therefore interest was not allowable till demand of payment was made, aud it was not shown that any demand' was ever made.

The judgment should be reversed and the cause remanded.

Judges Nap ton aud Sherwood concur. Judges Tories and Hough absent.