86 Mo. 27 (Mo. 1885), Leach v. Hannibal & St. J. R. Co.

Citation:86 Mo. 27
Opinion Judge:RAY, J.
Party Name:LEACH v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
Attorney:G. W. Easley for appellant. H. B. Leach pro se.
Court:Supreme Court of Missouri
 
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Page 27

86 Mo. 27 (Mo. 1885)

LEACH

v.

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885

Appeal from Hannibal Court of Common Pleas :--HON. JOHN T. REDD, Judge.

REVERSED.

G. W. Easley for appellant.

(1) The plaintiff could not recover on an implied promise to pay for the services rendered. The services being rendered by plaintiff, while in the employment, the law implies that the services were rendered under the contract of employment, unless the contrary be shown. Ross v. Hardin, 79 N.Y. 85; Wood on M. & S., sec. 90; Stansbury v. United States, 1 Ct. of Cl., 123; Smith on Master and Servant (3 Eng. Ed.) 130; Guthrie v. Merrill, 4 Kan. 187. (2) The receipts offered in evidence were prima facie evidence of payment for all services rendered during regular and irregular working hours, during the period of time covered by them, and the court committed error in excluding said receipts. 2 Whart. on Evid., sec. 1365, and note. (3) The seventh instruction, given by the court on its own motion, did not properly put the question of defendant's damages on its counter-claim before the jury. (4) The verdict and judgment being of the record proper, and it appearing that no judgment was rendered in favor of the defendant, on its counter-claim, the judgment must be reversed. Almost the entire costs of this litigation were made upon the counter-claim, yet, for want of a judgment in its favor, the defendant cannot recover its costs.

H. B. Leach pro se.

(1) There was no evidence that the duties of a notary public were embraced within the duties he was employed to perform as a servant of appellant, or that his salary included his fees as a notary public, hence the first and second instructions were properly refused. (2) Defendant had no ground of recovery growing out of the management by plaintiff of the suit of Johnson against it. Wharton on Neg., secs. 746 and 747; Sharman & Redf. on Neg., sec. 211, note 2, and sec. 212; Pennington v. Yell, 6 Eng. (Ark.) 212; Harter v. Morris, 18 Ohio St. 492. (3) The receipts offered in evidence were not admissible; they specify for what services they were given; fees as a notary are not named, and hence not included.

RAY, J.

The respondent was, for a number of years prior to 1878, in the appellant's employ as agent to settle claims for stock killed or injured on the...

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