47 Mo. App. 1 | Mo. Ct. App. | 1891
The plaintiff is doing business in the city of Chicago under the name of H. Gf. Willard & Co. Before the indebtedness sued on accrued, the plaintiff had conducted the business as manager for the Archer & Pancoast Manufacturing Company of New York.
This is an action on account for goods sold by the plaintiff to the defendant corporation. The defendant admitted the purchase, but pleaded accord and satisfaction. At the close of the case the court instructed the jury that the defendant had failed in its defense, and that the verdict should be for the plaintiff. There was a verdict and judgment accordingly, and the defendant has prosecuted this appeal.
It is insisted by the defendant that there was substantial evidence tending to prove the defense which it attempted to make. If so, the circuit court committed error in refusing to submit the case to the jury.
The defendant predicated its defense upon the following facts. After the sale of the goods in question, the defendant on the fifth day of May, 1890, made an assignment for the benefit of its creditors. The plaintiff placed his account with R. G. Dunn & Co., for collection, and the latter sent it to Mills & Flitcraft, its St. Louis attorneys. The defendant wrote letters to all of its creditors, among them the plaintiff, requesting them to meet at the office of the defendant’s attorneys in the city of St. Louis with a view of compromising the indebtedness. Mr. Mills, of the firm of Mills & Flit-craft, who represented several creditors including the plaintiff, attended this meeting. At the meeting the condition of the- defendant’s business was discussed, and a statement was made of its liabilities and assets. At this meeting the defendant offered to pay forty-percent. cash, provided the holders of indebtedness to a certain amount would first sign a compromise agreement
“ Chicago, May 28, 1890. .
“ R. G. Dunn & Co., 157 LaSalle St., Chicago.
“Your report on claim of A. Siegel Gas-Fixture Company of the twenty-fourth duly received, and will give you a decision in a few days. We shall be guided largely by instructions from Archer & Pancoast Manufacturing Company, New York, whose goods we are agents for here, and who have also placed their claim in your hands. Yery respectfully,
“Wi G. Willard & Co”
Upon the receipt of this letter R. G. Dunn & Co. wrote to Mills & Flitcraft concerning the proposed settlement as follows:
“Client writes ‘Will give you our decision in a few days about the matter of the above claim. Will be guided by instructions from Archer-Pancoast Manufacturing Company of New York, whose goods we are agents for here,’ ” etc.
It will be observed that R. G. Dunn & Co., in communicating the plaintiff’s reply to the proposition of settlement, omitted the word “ largely,” which materially changed the purport of the original communication. Mr. Mills showed this letter to Mr. Siegel, the president of the defendant. Soon afterwards Siegel went East, and secured the signatures of all the eastern creditors to the composition agreement, including that of the Archer & Pancoast Manufacturing Company. When this manufacturing company signed the agreement, Mr. Siegel took it for granted that the company also represented the plaintiff, and, upon the strength of this, the defendant notified Mr. Mills that the settlement had been agreed to by the plaintiff. Mills accepted this statement as true, received and receipted for forty per cent, of the claim, and sent the amount to R. G. Dunn & Co. When the latter remitted the amount of
The extent of the agency of an attorney at law has been well defined by several decisions of this court, and the supreme court, and they all declare but one doctrine. A lawyer has the right to receive and receipt for any money due his client, and such acquittance will bind the client to the extent only of the amount received. If a. suit is pending, he has full authority to control and manage the case in the court, even to the extent of dismissing it. But he has no power by virtue of his employment merely to compromise a case, or to accept a part of a claim in satisfaction of the whole. Therefore, any act of his beyond his authority, as fixed bylaw, is prima facie without authority. Walden v. Bolton, 55 Mo. 410; Spears v. Ledergeber, 56 Mo. 465; Melcher v. Bank, 85 Mo. 362, 371; Semple v. Atkinson, 64 Mo. 504; Roberts v. Nelson, 22 Mo. App. 28; Lewis v. Baker, 24 Mo. App. 682. Of course a party, who relies upon a compromise made with the attorney of his adversary, may show that express authority existed to make the compromise, or he may show that the principal had so acted that it would be a fraud to allow him to repudiate the act of his attorney. In other words he would be estopped to assert the truth. Black v. Rogers, 75 Mo. 441.
Applying the foregoing principles to the evidence, it is difficult to understand how the circuit judge could have acted otherwise than direct a verdict for the plaintiff for the balance of the debt. It is doubtless true that the defendant’s president believed that the plaintiff was,
The fact that Mr. Mills attended the creditors’ meeting cannot help out the defendant’s case. Its counsel argue that the fact of his attendance at the meeting is some evidence, that he had express authority from the plaintiff to compromise the claim. If there were anything in this argument, it would be exploded by the testimony of Mr. Mills to the effect, that he was not instructed by the plaintiff to go to the meeting, but was invited there by the defendant’s attorney. But under any circumstances the idea is too far-fetched and fanciful to be maintained. The meeting was called by the defendant, and the creditors were invited to attend. The object of the meeting was to make a showing of the liabilities and assets of the corporation with the view of a proposition, of settlement to be made by the defendant. That was the sole object of the meeting.
It is insisted further that, at the time the claim was placed in the hands of R. G. Dunn & Co., the assignment had been made, and that a simple authority to collect could not have been within the contemplation of the parties, — that a power beyond that of a mere collection of dividends was necessarily intended. This suggestion is without force. The demand had to be allowed by the
The manager of R. G. Dunn & Co. testified on cross-examination that he did not remember whether the original instructions to his principal in respect of the collection of the plaintiff’s claim were in writing or not. But he testified positively that the instructions, whether in writing or not, did not authorize R. G. Dunn & Co. to compromise the claim. There was no evidence to the contrary. Upon this testimony the defendant’s last argument is founded. It is asserted as a proposition of law that, where a contract rests in parol, its interpretation is for the jury, and not the court. Counsel would be right, if we were considering a case where there was any dispute under the evidence as to the terms of such a contract. When the terms of a parol agreement are given, and are unambiguous, its interpretation is as much a question of law for the court as the interpretaof an unambiguous written instrument. Norton v. Highee, 38 Mo. App. 467.
There are other objections urged against the ruling of the court, but we do not think it necessary to discuss them, as the result would be the same. Judgment affirmed.