Baker v. Kansas City, St. Joseph And Council Bluffs Railroad Company

• Citation: 3 S.W. 486,91 Mo. 152
• Parties: Baker, Appellant, v. The Kansas City, St. Joseph and Council Bluffs Railroad Company
• Decision Date: 28 February 1887
• Court: United States State Supreme Court of Missouri

3 S.W. 486

91 Mo. 152

Baker, Appellant, v. The Kansas City, St. Joseph and Council Bluffs Railroad Company

Supreme Court of Missouri

February 28, 1887

October, 1886

Appeal from Holt Circuit Court. -- Hon. H. S. Kelley, Judge.

Reversed.

Crosby Rusk & Craig and R. T. Rea for appellant.

(1) The case should have been given to the jury if there was any evidence (a) of the contract alleged, (b) of its breach, and (c) that the agent had authority to make it, or that plaintiff had reason to believe and did believe that he had such authority. Brown v. Emerson, 18 Mo. 103; Owen v. O'Reilly, 20 Mo. 603; 3 Parsons on Contracts [5 Ed.] 117, 118; 1 Sedgwick on the Meas. of Dam. [7 Ed.] top p. 200, side p. 108. (2) There was evidence, both of the contract and its breach, as alleged in the petition. (3) There was, also, not only evidence that the plaintiff had good reason to believe, and did believe, that the agent had authority to make such contract, but that the agent had such authority. (4) The company was bound by the apparent authority of its agent. Harrison v. Railroad, 74 Mo 364; Prewitt v. Railroad, 62 Mo. 540; Scalarris v. Railroad, 18 Nev. 155; Grafius v. Land Company, 3 Phila. 447. (5) The authority of an agent is to be determined by the nature of his business, and on the face of the matter is co-extensive with its requirements. Gentry v. Insurance Co., 15 Mo.App. 215. (6) There being no written contract or appointment in evidence by which the extent of Smith's authority could be determined, it was a question to be left to the jury under all the evidence, together with the question of plaintiff's notice of that authority, unless defendant's evidence admitted that Smith had authority to make the contract in proof. Barrett v. Railroad, 9 Mo.App. 226; Gelvin v. Railroad, 21 Mo.App. 273.

Huston & Parrish for respondent.

The court properly sustained the demurrer to the evidence in this case. (a) The evidence did not prove the contract or tend to do so. There can be no valid contract unless the parties thereto assent, and they must assent thereto at the same time, and in the same sense; their minds must meet and agree on the same thing. Eads v. City of Carondelet, 42 Mo. 113-17; Brown v. Price, 29 Mo. 323; Lungstras v. German Insurance Co., 48 Mo. 201-4; Donlanson v. Studebaker, 52 Ind. 286-93; Polkin v. McIntyre, 81 Mo. 557-60; Ferguson v. Hemmingway, 38 Mich. 159-61; Booth v. Brice, 38 N.Y. 463; Suit v. Taylor, 20 Mo.App. 166-73-75; Aull Savings Bank v. Aull's Adm'r, 80 Mo. 199-202; 1 Cush. 89. (b) There is nothing in the evidence tending to prove that Smith had the authority to make the contract. The appellant claims that the authority may be implied from his title, "General Freight Agent," and that whatever contract he might make would bind the company, whether it came within the scope of his authority or not. The court cannot take judicial notice of the duties of defendant's general freight agent. McGown v. Railroad, 61 Mo. 528; Brown v. Railroad, 67 Mo. 122. The suit is brought alone on a special contract, and not on the violation imposed on the defendant by law, as a common carrier. The law of common carriers, therefore, is not applicable. The case is to be tested by the law of contracts and agencies, applicable to all alike. Collier v. Sweeny, 16 Mo. 484. "An agent having a general power to settle claims has no power to arbitrate claims." Railroad v. Conyer, 55 Ill. 503; Chouteau v. Anthony, 11 Mo. 226; Summerville v. Railroad, 42 Mo. 391. "The general duties of a cashier of a bank are to collect notes, and in the absence of special authority he has no power to discharge surety." Davis County Bank v. Sailer, 63 Mo. 24; National Bank of Trenton v. Gay, 63 Mo. 33; Taylor v. Robinson, 14 Cal. 396; Mathews v. Hamilton, 23 Ill. 407; Buckwalter v. Craig, 55 Mo. 71; Tucker v. Railroad, 54 Mo. 177.

OPINION

Brace, J.

This action was brought to recover damages for the failure of defendant to furnish a certain number of cars at certain stations on a specified day. The petition alleges, "that, at the times hereinafter mentioned, the defendant was, and it still is, a corporation, organized and existing under and by virtue of the laws of the state of Missouri, and engaged in the business of transporting goods and chattels, as a common carrier, for hire; that, on or about the twenty-seventh day of May, 1881, in consideration of the promise then and there made by plaintiff that he would drive to defendant's stations in the towns of Mound City and Maitland, Missouri, and have there, on the thirty-first day of May, 1881, ready for shipment and to be shipped over defendant's railroad, to Chicago, Illinois, cattle and hogs sufficient to fill twenty-three cars, the defendant undertook and agreed to provide, furnish, and have at its said stations of Mound City and Maitland, on the thirtieth day of May, 1881, twenty-three cars in readiness to receive and transport plaintiff's said cattle and hogs as aforesaid; that plaintiff, relying on said undertaking and agreement, drove his said cattle and hogs to said stations, and, on said thirty-first day of May, 1881, had, at said stations ready for shipment and to be shipped over defendant's said railroad to Chicago, Illinois, cattle and hogs sufficient to fill twenty-three cars. Plaintiff further states that the defendant, disregarding its said undertaking and agreement, failed to provide, furnish, or have in readiness, at its said stations, or either of them, on said thirtieth day of May, 1881, any cars in which to receive and transport plaintiff's cattle as aforesaid, and did not furnish or provide such cars until the third day of June, 1881, by reason of which said failure of defendant to provide said cars at the time and places agreed upon as aforesaid, plaintiff's said cattle were detained at said stations, and were not, and could not, be shipped therefrom, on their way to Chicago, until the fourth day of June, 1881, to plaintiff's damage in the sum of three thousand dollars;" and then specifies the particulars of the losses and damages by reason of defendant's failure.

Defendant's answer was, in effect, a denial that defendant ever entered into the contract set out in the petition. After the testimony was all in, the court instructed the jury to find for the defendant; thereupon plaintiff took a non-suit, with leave; and afterwards moved to set the same aside, which motion being overruled, he brings the case here by appeal, and assigns for error the action of the court in instructing the jury to find for the defendant.

The only question presented for our consideration on the record is, was there evidence introduced upon the trial tending to prove that defendant entered into the contract with the plaintiff, set out in the petition? It is claimed by the plaintiff that the contract was made with James E. Smith, the defendant's general freight agent, and unless there was evidence tending to prove that such contract was made with said general freight agent, and that he had authority to make the contract, there was no error committed by the trial court.

The evidence of plaintiff is relied upon to show that the contract was made; he states, substantially, as follows, in chief: "On May 27, I came from home up to Holt county and stopped in St. Joe. I met Mr. Smith; Mr. Smith was general freight agent of the Kansas City & Council Bluffs Railroad; I told him I wanted twenty-three cars on the thirtieth -- eight at Mound City, and fifteen at Maitland, for Chicago. I asked him if he could get the cars, and he said he could, and called a clerk to take down the order, and asked me would I have the cattle there; I said I would, and wanted the cars on Monday so that I could bed them. I told him I wanted the cars; he asked me if I could have the cattle there; I said I would; he then said I could have the cars, and called the clerk to take the order, and then told me to see the agents at Mound City and Maitland; I went to Mound City and Maitland and spoke to them as Smith had requested me to do. I made the arrangements with Mr. Smith; I did not see any other party;" and on cross-examination: "I told him, Smith, I wanted twenty-three cars at Mound City and Maitland -- eight at Mound City, and fifteen at Maitland; asked if I could have the cars; he said I could, and asked me if I would bring the cattle in; I said I would, and he called the clerk and gave him the order. I told him I wanted the cars May 30, and that if I had the assurance of cars, the stock would be there; he then said he would have the cars there. I am sure he made that expression. He then called the clerk to take down the number of cars; I suppose the clerk did take it down; saw him write at Smith's...