29 N.W. 482 (Mich. 1886), Bond v. Pontiac, O. & P.A.R. Co.

Citation:29 N.W. 482, 62 Mich. 643
Opinion Judge:[62 Mich. 645] CAMPBELL, C.J.
Party Name:BOND v. PONTIAC, O. & P.A.R. CO.
Attorney:[62 Mich. 645] J.B. Moore, for plaintiff, William Grant Bond. [62 Mich. 644] A.C. Baldwin, for defendant and appellant, Pontiac, O. & P.A.R. Co.
Judge Panel:CHAMPLIN and SHERWOOD, JJ., concurred.
Case Date:October 07, 1886
Court:Supreme Court of Michigan

Page 482

29 N.W. 482 (Mich. 1886)

62 Mich. 643




Supreme Court of Michigan

October 7, 1886

Error to Lapeer.

[62 Mich. 645] J.B. Moore, for plaintiff, William Grant Bond.

[62 Mich. 644] A.C. Baldwin, for defendant and appellant, Pontiac, O. & P.A.R. Co.

[62 Mich. 645] CAMPBELL, C.J.

Plaintiff sued, and recovered against defendant, on an alleged verbal contract made with F.B. Howard, as chief engineer, whereby plaintiff was to have the building of 14 depot buildings, for which he made preparations, but which, as he claims, he was not allowed to complete. Defendant denies any such contract relations. It was claimed by defendant, and shown by testimony in no way impugned, (although the jury, without any evidence, found otherwise,) that the whole building and equipment of the railroad had been put under contract with the New York, New England & Western Investment Company, and that defendant had nothing further to do with it, and none of defendant's officers or agents had any authority in the matter. In order to make out his case, plaintiff, by his own testimony, swore to the making of the arrangement with Mr. Howard. To establish Mr. Howard's authority he introduced testimony of various things done on

Page 483

the road, from which he claimed authority might be inferred against defendant.

The contract in question for building the road bound the defendant to furnish right of way and depot ground, and the investment company was to do all the rest, except a tract near Caseville, to be built by Francis Crawford, near his mill. He was also to furnish an amount of ties which the investment company was to pay for.

[62 Mich. 646] It is not disputed, and the court below so charged the jury, that no testimony appeared of any corporate action authorizing Mr. Howard to act for the defendant in the matter in controversy, or ratifying his action. The contract with the investment company bound defendant to appoint, as chief engineer, secretary, and treasurer, persons satisfactory to the investment company. The case does not show any grant of power from defendant to any such officers, or that any of them represented defendant in the work which was in progress by any such authority. No payment was made to plaintiff, and no recognition was had by defendant of the contract in question, and no facilities were given him for carrying it out. The action is for not permitting its completion, and not for performance. The case was placed entirely on circumstantial evidence, and the questions relate chiefly to its force and validity.

It was early objected that plaintiff and his witnesses were allowed to refer repeatedly to defendant as the party dealing or dealt with when the question of authority was mooted, and it was essential to know with what particular person the dealing was had. We think the objection should have been regarded, and that the court, by allowing witnesses to persist in such references, placed the jury in a position where they were not only liable to be misled, but were also likely to overlook the necessity of proof of authority.

In order to understand the bearing of the facts admitted against defendant, it is necessary to consider the position of various persons whose actions were deemed important on the trial. Mr. Howard was nominated to the investment company, and approved by them, as engineer of the defendant in 1881, and so continued until some time in 1883. He was entirely paid by and received orders from the investment company as their own engineer. No record was shown of any instructions or powers from defendant. George Nettleton succeeded him. F.H. McCarroll was paymaster of the investment company until July, 1883, and secretary of the defendant after July, 1883. [62 Mich. 647] Alfred R. Fiske was examiner and engineer of the...

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