135 Mo. App. 293 | Mo. Ct. App. | 1909
This is a suit on quantum meruit for the value of materials furnished and services rendered in printing a brief to be filed and used in the Court of Appeals of New York in what is known as. the Rice will case. The trial was had before the circuit judge without a jury. Plaintiffs recovered and defendant prosecutes the appeal.
The evidence tended to prove that the plaintiffs were partners doing a printing business in the city of New York, under the firm name of B. H.-Tyrrel. The defendant is a resident of the city of St. Louis, and the brother-in-law of. Mr. Patrick, who was involved in extensive litigation in New York concerning the will of one Rice, deceased. It appears Mr. Patrick had employed one Tomlinson as his attorney in the Rice will case and probably other litigation then pending. The attorney, Mr. Tomlinson, testified, and in fact it seems
“New York, September 29th, 1903.
“John T. Milliken, Esq.,
“316 Clark Ave., St. Louis, Mo.
“My Dear Mr. Milliken: I have now given to the printer and he is printing our briefs before the Court of Appeals in the Will case. Tyrrel did not care to do the work without a letter from you saying you would pay for them. I told him you would write such a letter; I had to do this as the work had to be done. Please send me a letter to the effect that you will pay for this bill by return mail, and oblige,
“Very truly yours,
“John O. Tomlinson.”
“St. Lonis, Mo., Oct. 1st, 1903.
“John 0. Tomlinson, Esq.,
“15 Wall St., New York CJity.
“My Dear Mr. Tomlinson: Yonr favor of the 29th ultimo is at hand and I note its contents.
“Of course I will pay the printer for the brief from the Court of Appeals on the Will case, but be careful to see that he does not-charge us more than $1.00 a page. ' Yours very truly,
“John T. Milliken.”
The briefs were completed and served upon adverse counsel in the cause by plaintiffs and the copies ordered delivered to Mr. Tomlinson in due time and before the defendant’s letter quoted reached the city of New York. In fact, plaintiffs had no notice whatever of defendant’s caution to his attorney, Mr. Tom-linson to be careful to see that plaintiffs did not charge more than one dollar per page for the work, for a considerable time thereafter. On its face the bill rendered for the printing seems to be exorbitant. Prom a careful perusal of the testimony, however, it appears that because of the time limit in which the briefs were to be prepared and the rush order incident thereto, it involved a large amount of night work. For such night work an extraordinary charge is made by the union labor employed in such establishments and the consequent high charges for night work by the printer. It also appears that Mr. Tomlinson mvrote large portions of the brief after it was in type, which necessitated doing this portion of the work over a second time by the printer. Numerous witnesses testified to the fact that the charges were reasonable and the same as were charged in other establishments for printing of like kind at the time in New York City. In fact, aside from
The principal argument advanced for a reversal of the judgment is to the effect that the evidence is insufficient to support the same for the reason it appears Attorney Tomlinson was without authority to contract an obligation to exceed one dollar per page for the printing. We are not so persuaded. There is ample evidence in the case tending to prove that defendant had authorized Tomlinson to contract for. him such indebtedness as was essential to a proper conduct of the litigation. No construction can be placed upon the testimony of Mr. Tomlinson himself other than that he had full authority from defendant in that behalf. It is true there is evidence on the part of the defendant to the effect that he had complained of charges theretofore made and written Tomlinson some weeks before suggesting that some other person could possibly negotiate better terms for the printing. Nothing appears, however, in the correspondence prior to the date of the present order for briefs which could be reasonably construed as revoking the authority which Tomlinson claims he theretofore had in that behalf. Indeed, it appears that defendant, not having paid the bill for printing involved in the present action, the plaintiffs wrote him, inclosing a copy of same on November 27th, requesting its payment. To this letter the defendant replied:
“St. Louis, Mo., Dec. 2, 1903.
“Benj. EL. Tyrrel, Esq.,
149 Fulton St., New York City.
“Dear Sir: Your favor of the 27th ultimo is at hand. I sent your bill to Mr. Tomlinson for his O' K but he failed to do it. It does seem to me like you*298 charge me more money for a little work of anybody I ever had anything to do with.
“Yours Yery Truly,
“John T. Milliken.’'’
There seems to be in this letter no intimation of want of authority on the part of Mr. Tomlinson to order the briefs. If anything is to be inferred therefrom, it is that the defendant had deferred paying the bill for no other reason than that it had not been approved by Attorney Tomlinson. It is true the defendant’s evidence is to the effect that Tomlinson exceeded his authority in contracting the indebtedness here sued upon. However this may be, the trial judge who saw and heard the witnesses, is exclusively vested with the authority to give judgment upon their credibility and the weight and value of their testimony. There being substantial evidence tending to prove that Tom-linson had been authorized by the defendant to contract the indebtedness in suit as one legitimately incident to the litigation, this court will not attempt to review its action in that behalf.
Defendant’s counsel lay much stress, however, upon the letter to Tomlinson of October 1, 1903, in which he said: “Of course I will pay the printer for the brief. ... Be careful to see that he does not charge ns more than one dollar per page.” This letter was written several days after the briefs had been ordered and was not received by Tomlinson until after the services had been performed. While it admits the obligation of the defendant to pay, and tacitly ratifies the act of Tomlinson in ordering the briefs, it is true that it contains the admonition to him to be careful to see that the printer did not charge more than one dollar per page. This admonition should be interpreted in the light of the facts that the briefs had already been ordered and, as the writer knew, would be completed before its receipt. Viewed thus, it amounted to no more
Tbe action was originally commenced in tbe name of B. H. Tyrrel, plaintiff. An amended petition was afterwards filed in which Elmer B. Tyrrel and Benj. L. Tyrrel were added as coplaintiffs with tbe original plaintiff, B. H. Tyrrel, and it was alleged therein that tbe three coplaintiffs were copartners doing a general printing business under tbe firm or partnership name of B. H. Tyrrel. Tbe answer was a general denial, unverified. Our statute (sec. 746, R. S. 1899, sec. 746, Mo. Ann. St. 1906) provides that unless an allegation of partnership be denied under oath, when tbe names of tbe partners are given, tbe same shall be taken as confessed in the case. For tbe purposes of tbe case, tbe allegation of partnership therefore stands admitted. Tbe argument is advanced, however, to tbe effect that tbe court erred in permitting an amendment by which tbe two additional copartners were brought into tbe case. It is said that such ■ amendment changed tbe
The judgment should be affirmed. It is so ordered.