Wagner v. Edison Electric Illuminating Company

• Decision Date: 03 July 1903
• Citation: 75 S.W. 966,177 Mo. 44
• Parties: WAGNER v. EDISON ELECTRIC ILLUMINATING COMPANY, Appellant
• Court: Missouri Supreme Court

75 S.W. 966

177 Mo. 44

WAGNER v. EDISON ELECTRIC ILLUMINATING COMPANY, Appellant

Supreme Court of Missouri

July 3, 1903

Transferred from St. Louis Court of Appeals.

Circuit court judgment reversed and remanded.

Judson & Green for appellant.

(1) The court erred in submitting this case to the jury. (a) There was no express employment of plaintiff except by the construction committee (if that was a valid appointment), no evidence of any express promise to pay for services, and no evidence from which a jury should have been allowed to infer or conjecture a promise by defendant to pay plaintiff for such services as he rendered as engineer of joint construction. Allen's Administrator v. College etc., 41 Mo. 301; Kinner v. Tschirpe, 54 Mo.App. 579; Bittrick v. Gilmore, 53 Mo.App. 56; Painter v. Ritchey, 43 Mo.App. 113; Lippman v Tittman, 31 Mo.App. 74; Taylor v. Laird, 25 L. J. E. 332. (b) There was no evidence tending to show that defendant knew plaintiff intended to charge it for his services as engineer of joint construction until the matter of the Imperial Company came before the committee, and plaintiff admits that then defendant at once repudiated such a charge and notified plaintiff it would not pay him for such services. Under such circumstances the law will not imply a promise of compensation. Painter v. Ritchey, 43 Mo.App. 113; Hewit v. Doherty, 25 Mo.App. 326; Knapp, Stout & Co. v. Standley, 45 Mo.App. 264; Pricket v. Badger, 37 Eng. Law & Eq. 428. (c) Defendant could not discharge Mr. Wagner when it learned that he intended to charge for his services, and the circumstances were such as to compel it to accept the benefits of those services, so far as they affected defendant. The law is that there can be no implied promise to pay for services if defendant has not the power to accept or refuse the services. Taylor v. Laird, 25 L. J. E. 329; Zottman v. San Francisco, 20 Cal. 96; Davis v. School Dist. No. 2, 24 Me. 349. (d) Defendant's acceptance of the benefits of plaintiff's services, in no way influenced plaintiff in reference to his work as supervising engineer, and therefore no promise of compensation can be implied from such acceptance. Richard v. Warren County, 31 Iowa 381; Zottman v. San Francisco, 20 Cal. 96. (2) If plaintiff had a contract with defendant whereby he became its employee (conceding that for the purpose of this point only), it was, according to his testimony, based on the records of the committee. It was an employment as engineer for joint construction, and covered the entire period necessary for that work, and as that work was not finished until the fall of 1898 plaintiff could not split his cause of action. Hence this suit is premature. Hill v. Mining Co., 119 Mo. 27; Bersch v. Sander, 37 Mo.App. 106; Alkire Grocery Co. v. Taggart, 60 Mo.App. 392; Lawson on Contracts, sec. 489; Real v. Moone, 19 Johns. 340; Jennings v. Camp, 13 Johns. 94; McMillan v. Van der Lip, 12 Johns. 165; Lantry v. Parks, 8 Cow. 63; Nickels v. Pattison, 14 Wend. 259; Stephens v. Beard, 4 Wend. 606; Krumb v. Campbell, 102 Cal. 370; Cox v. Railroad, 44 Cal. 18; Larkin v. Buck, 11 Ohio St. 561; Coburn v. City, 38 Conn. 290; Wright v. Turner, 1 Stew. (Ala.) 29. (3) But conceding for the argument that there was sufficient evidence to authorize the submission of the case to the jury, the court erred in the instructions given for plaintiff. (a) The second instruction given for plaintiff requires a verdict for plaintiff if defendant's officers knew he was rendering services and expected pay. This, in the circumstances disclosed by the evidence, was not the law. Bank v. Aull, 80 Mo. 199; Kinner v. Tschirpe, 54 Mo.App. 575; Bittrick v. Gilmore, 53 Mo.App. 53; Lippman v. Tittman, 31 Mo.App. 69; Folger v. Heidel, 60 Mo. 284; Hart v. Hart's Admr., 41 Mo. 441. This second instruction is also in direct conflict with the first instruction given for defendant and renders the entire charge inconsistent, to the evident confusion of the jury and prejudice of defendant. State v. Herrell, 97 Mo. 105; State v. Brumley, 53 Mo.App. 126; McNichols v. Nelson, 45 Mo.App. 446; Kinner v. Tschirpe, 54 Mo.App. 575; James v. Railroad, 107 Mo. 480; Jones v. Talbot, 4 Mo. 297; Maskowitz v. Kansas City, 125 Mo. 485. (b) The third instruction given for plaintiff was erroneous in making plaintiff's right to recover depend only on the acceptance by defendant of the results of his labor although there was no employment or request to perform the services. Allen v. College, 41 Mo. 302; Whaley v. Peak, 49 Mo. 80; Painter v. Richey, 43 Mo.App. 311; Carter v. Phillips, 49 Mo.App. 319; Hiemenz v. Goerger, 51 Mo.App. 586; Harywell v. Christopher, 61 Mo.App. 64.

Morton Jourdan for respondent.

In lieu of statement and brief, counsel for respondent submits the exhaustive statement and able opinion of the Hon. C. C. Bland, one of the judges of the St. Louis Court of Appeals, rendered in this case while it was pending in that court.

BRACE J. Robinson, C. J., and Gantt, J., dissent on the point of apportioning the contract.

OPINION

In Banc

BRACE, J.

This case is certified here from the St. Louis Court of Appeals, upon the dissent of one of the judges of that court, to the decision of a majority thereof, in an opinion by Bland, P. J., reported in 82 Mo.App. 287. A copy of that opinion, affirming the judgment of the circuit court in favor of the plaintiff, without additional argument or brief, is filed by his counsel in support of that judgment, and may be taken for the statement of the case. It is as follows:

"In 1896 the Municipal Assembly of the city of St. Louis passed Ordinance No. 18680 (known as the 'Keyes' ordinance) which required electric light and power companies doing business within the district bounded by the river and Twenty-second street, Wash and Spruce streets, to bury their wires under ground, and forbidding the use of poles, etc., above ground within the designated territory after December 31, 1898. The ordinance provided certain privileges to persons and corporations complying with its terms. The defendant, the Phoenix Light, Heat and Power Company, the Missouri Electric Light & Power Company, and the St. Louis Electric Light and Power Company qualified under the ordinance, and presented to the Board of Public Improvements of the city their several plans for construction of underground conduits. These plans were located in many instances on the same streets and alleys in the district, for which the several companies were compelled to construct jointly, by order of the Board of Public Improvements in the exercise of a power delegated to it by the ordinance. The abovementioned companies on April 17, 1897, entered into a single but several contract with the National Conduit Construction Company of St. Louis and two other construction companies, for the underground conduits to be used by them jointly. This contract provided for a construction committee of four members, one to be selected from each of the four companies, to which all disputes between the said companies and the construction companies should be referred for final decision. No engineer was named in this contract for these several companies, yet the contract in numerous places refers to one, and certain powers are given him with respect to supervision and approval of the work, showing that the appointment of such an engineer was contemplated by all the parties to the contract. The conduits are roughly described in the evidence as similar to a large gun barrel with numerous circular spaces extending its entire length with the ducts of each company, varying in number according to its needs, but made inseparable from the ducts of the other companies, so that the ducts of one could not be removed without removing all; so that the surveys, plans, supervision permits and all that appertained to the construction of the conduits were both the joint and individual undertaking of the four companies. The committee provided for in the contract was made up of E. V. Matlack, representing the defendant; A. Ross, representing the Phoenix Company; D. W. Guernsey, representing the St. Louis Company; and plaintiff, representing the Missouri Company. On April 30, 1897, the committee organized by electing Wagner chairman, and Ross secretary, and adopted rules for the conduct of its proceedings, among which was one providing that no motion could be carried unless it received three votes in the affirmative. On May 7, 1897, Mr. Ross moved that Wagner be appointed engineer to supervise the underground work as provided for in the contract of April 17, 1897. The motion was seconded by Guernsey. On vote being taken, all voted aye, except Mr. Matlack who voted no, and Wagner was declared duly appointed engineer. Mr. Wagner appointed the other gentlemen of the committee, a committee of three to outline and define the duties of the engineer. A majority and minority report was made; the majority report was adopted by the full committee, Matlack voting in the negative. Briefly stated, the majority report as adopted required the engineer to provide all plans for construction; to secure permits therefor from the Board of Public Improvements, and to have general supervision over the work provided for in the contract of April 17, 1897. The committee in behalf of the several companies in interest then gave to the Board of Public Improvements the following notice:

"'St. Louis, Mo., May 11, 1897.

"'To the Hon. Board of Public Improvements of the city of St. Louis:

"'Gentlemen: The undersigned companies have appointed Mr. Herbert A. Wagner engineer for the construction of their conduits, under authority of Ordinance No. 18680. You will please deliver permits for conduits to him or his order.

"'Very respectfully,

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