Watkins v. Trustees of the Richmond College

41 Mo. 302 | Mo. | 1867

Fagg, Judge,

delivered the opinion of the court.

It is shown by the record that this suit was instituted in the Ray Circuit Court, to recover a sum of money alleged to have been advanced by James R. Allen in his lifetime, for the completion of the college edifice at the city of Richmond. A trial was had before the court sitting as a jury, which resulted in a verdict and judgment for the defendants. The judgment was reversed upon an appeal taken to the 5 th District Court, and the case is now brought here upon a writ of error.

A careful examination of the record, we think, limits this court to the consideration of only one question. All of the declarations of law asked by both plaintiff and defendants were refused by the court; and upon its own motion the law of the case was declared in a series of instructions drawn by the judge himself. These declarations of law constitute the chief grounds of complaint against the action of the Circuit Court; and it is necessary that the evidence in the cause should be carefully examined for the purpose of determining their correctness. It is not claimed that this was anything more than an action upon an implied promise by the trustees of the college to repay to Allen the actual amount of money alleged to have been paid by him to their use. There was no averment of an express contract in the petition. The answer denied the existence of any contract between the parties, and averred that the services of Allen were voluntarily rendered, and the money expended by him intended as a donation to the college. The issue presented by the pleadings was so simple in its character, and the facts disclosed in the testimony within such a narrow compass, as to make the application of the law a matter of no difficulty.

It may be said generally of the instructions that they contain much matter of an objectionable character. The first being hypothecated upon a state of facts not warranted by the evidence in the cause (if taken by itself), would be clearly improper; when, however, it is considered in connection with the others, we cannot say there is such an error as will require this court to interfere with the verdict.

The second and third instructions present in terms sufficiently explicit the true issue in the case ; and the three taken together could not possibly prejudice the plaintiff. The matter to be determined was really whether the acts of Allen were to be taken as a voluntary contribution of his services to the college, or whether there was sufficient in the transaction, as a whole, to raise an implied promise on the part of the corporation to repay him the money which he had expended for their use.

This is a question of fact determined by the court. We are not at libertysto weigh the evidence for the purpose of deciding whether its finding was correct or not. It is only necessary to ascertain whether there was sufficient evidence to sustain the verdict; and if that sufficiently appears, it is not the province of this coux-t to disturb it.

The principal, and, indeed it might almost be said, the only witness, discloses a state of facts that might have authorized a jury to find either way. So much was left to mere inference that different persons might very well come to opposite conclusions as to what was really the intention of the parties ; and this court ought not to interfere in such a case. If any hardship has resulted to the estate of Allen, there is no power in this court, from the case presented here, to relieve against it.

The other judges concurring,

the judgment of the District Court will be reversed.

Wagner, Judge. The question is whether the work and labor was performed and the materials furnished under such circumstancs as would amount to an implied contract, in law, by which the plaintiff could maintain his action; or whether it was understood at the time the work was done, between the parties, that it was a mere gratuity.

No person can by officious intermeddling cast a liability on another, and an obligation will not generally be imposed unless there has been a previous request moving from the obligor and enuring to the obligee. But where a party derives a benefit from the consideration,or the act done is beneficial, his subsequent express promise will be binding; and even his subsequent assent will be sufficient evidence from which the jury will be authorized in finding a previous request, and he will accordingly be bound—Osborne v. Rogers, 1 (Wms.) Saund. 264, note 1. It is not necessary in all cases for the plaintiff to prove an express assent of the defendant to enable the jury to find a previous request; they may infer it from his knowledge of the plaintiff’s acts, or his silent acquiescence—Doty v. Wilson, 14 Johns. 378, 382; Metcalf’s Yelv. 41, note 1. And sometimes the jury will be warranted in inferring a previous request, even contrary to the actual fact, on the ground of legal obligation alone; as in a case where an action was brought against the husband for the funeral expenses of his wife, he having been beyond the seas at the time' of her burial; or against executors for the funeral expenses of the testator, for which they had neglected to give orders—Jenkins v. Tucker, 1 H. Bl. 90; Tugwell v. Heyman, 3 Campb. 298; 10 Pick. 156. But the law will not ordinarily imply a promise against the express declarations of the party—Whiting v. Sullivan, 7 Mass. 107. Nor can a plaintiff recover compensation for merely voluntary services bestowed under no employment from the defendant, unless there has been an express or implied promise to pay therefor—Lynch v. Bogy, 19 Mo. 170. So too, as a general proposition, no man can make himself the creditor of another by any act of his own unsolicited and purely officious. There must be a previous authorization either express or implied, or an assent or sanction given af- , ter the money is paid or the act done. If a plaintiff volunteers a payment on account of a defendant without any authority or request express or implied, the defendant is not obliged to reimburse him—Renns. Glass Factory v. Reid, 6 Cow. 603; Bailey v. Gibbs, 9 Mo. 44; Jones v. Wilson, 3 Johns. 434; Beach v. Vandenburg, 10 Johns. 361; Stokes v. Lewis, 1 T. R. 20; Child v. Morley, 8 T. R. 613; Winsor v. Savage, 9 Metc. 347; Young v. Dibbrell, 7 Humph. 290; Lewis v. Lewis, 3 Strobh. 530. And where a party volun- ' tarily does an act, or renders service, and there was no intention at the time that he should charge therefor, or understanding that the other should pay, he will not be permitted to recover, for that which was originally intended as a gratuity cannot be subsequently turned into a charge—Fitch v. Peckham, 7 Vt. 150; Gore v. Summersall, 5 Mon. 513. And whether it was intended as a gratuity, is a question of fact.

The committee appointed for finishing the college expressly refused to accede to Allen’s proposition for doing the necessary work to complete the building, nor is there anything to show that there was ever any act or assent by which a contract could be implied. Allen was strangely reticent in regard to the whole matter; and that it was the understanding of those under whose auspices the college was erected, that he was doing the work as a donation, there can be little doubt. The Circuit Court found as a fact that he expended his work and labor as a voluntary gift to help along a public institution struggling into existence amid pecuniary embarrassments. The evidence sustains the finding; and even were it weaker on this point, we could not interfere when there had been no misdirection as to the law.

I am of the opinion that the judgment of the District Court should be reversed, and the judgment of the Circuit Court affirmed.