Tyrrel v. Milliken

• Decision Date: 12 January 1909
• Citation: 135 Mo. App. 293,115 S.W. 512
• Parties: TYRREL et al. v. MILLIKEN.
• Court: Missouri Court of Appeals

115 S.W. 512

135 Mo. App. 293

TYRREL et al. v. MILLIKEN.

St. Louis Court of Appeals. Missouri.

January 12, 1909.

1. ATTORNEY AND CLIENT (§ 81)—AUTHORITY OF ATTORNEY — CONTRACT FOR PRINTING BRIEFS.

Defendant having agreed to pay the expenses of litigation in which his brother-in-law was interested, except attorney's fees, the attorney ordered a brief to be printed for the New York Court of Appeals. Plaintiffs, because of the shortness of the time, began the printing at once, but requested the attorney to obtain a letter from defendant promising to pay the bill. Defendant returned a letter to the attorney stating that he would pay the printer for the brief, but asking the attorney to see that he did not charge more than $1 a page. This letter was not received until after the printing was completed. Held, that the attorney was authorized by defendant to contract for the printing, and that his authority was not limited to a contract for $1 a page.

2. PARTNERSHIP (§ 213) — ACTION BY FIRM— ALLEGATION OF PARTNERSHIP.

Under Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), where an amended petition in a suit by a firm alleged the names of the partners, the allegation of partnership was admitted by defendant filing an answer consisting of an unverified general denial.

3. PARTIES (§ 95)—ACTION BY FIRM — PETITION —AMENDMENT.

Under Rev. St. 1899, § 540 (Ann. St. 1906, p. 575), requiring prosecution of an action in the name of the real party or parties in interest, and section 658 (Ann. St. 1906, p. 677), providing that, when a complete determination of a controversy cannot be had without the presence of other parties, the court may order them brought in by amendment, a petition in the name of a firm may be properly amended so as to make all of the partners individually parties plaintiff.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by B. H. Tyrrel and others against John T. Milliken. Judgment for plaintiffs, and defendant appeals. Affirmed.

Rassieur, Schnurmacher & Rassieur, for appellant. Bishop & Cobbs, for respondents.

NORTONI, J.

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 to be conceded, that the present defendant, in order to protect the interests of his wife's brother, Mr. Patrick, and the family name, agreed to pay the expenses incident to the litigation then pending, other than attorney's fees. In accordance with this agreement, Tomlinson had theretofore ordered a brief printed by the present plaintiffs, and defendant, although objecting to the amount, had paid the bill therefor. The Rice Will Case having reached the Court of Appeals of New York, an order was made by that court to the effect that the briefs should be filed therein on or before October 3d. Attorney Tomlinson prepared the manuscript and submitted it to plaintiffs, a printing establishment, on the afternoon of September 29th, with a rush order for the printing. In view of the fact that defendant had made some objection to the plaintiffs' charges on the prior brief received from Mr. Tomlinson for him, plaintiffs requested Tomlinson to procure a letter from the defendant saying that he would pay the bill without objection. No contract was made touching the value of the services, but Tomlinson instructed plaintiffs to push the work forward as the time for filing briefs was very short. On the same day, Attorney Tomlinson wrote the defendant the following letter: "New York, September 29, 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 brief 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 C. Tomlinson." To which the defendant answered on October 1st, as follows: "St. Louis, Mo., Oct. 1, 1903. John C. Tomlinson, Esq., 15 Wall St., New York City—My Dear Mr. Tomlinson: Your 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. Tomlinson to be careful to see that plaintiffs did not charge more than $1 per page for the work for a considerable time thereafter. On its face the bill rendered for the printing seems to be exorbitant. From 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 rewrote 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 defendant's complaint that the price was exorbitant, there is no evidence in the case that the charges were not reasonable, or that they were more than other establishments in that city would charge for the same services.

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 $1 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...