Leach v. Hannibal & St. Joseph R.R. Co.

Decision Date30 April 1885
PartiesLEACH v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
CourtMissouri Supreme Court

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 railroad, and as assistant for Mr. Carr, who was the general attorney of appellant, and for his services in these behalfs, received a regular salary. During the time of said employment, respondent was appointed and qualified as a notary public, and as such took the acknowledgment of numerous deeds, by defendant, through its land commissioner, and also certified to affidavits of appeals, and also to answers in garnishment made by the appellant, when directed to do so by Mr. Carr. Plaintiff was discharged from said employment by defendant in 1878, and thereafter brought this suit to recover of defendant for said services so rendered as said notary, during his said employment. The plaintiff's claims therefor were appropriately declared on and set out in his petition. There is no conflict, as we gather from the record, as to the actual rendition of said services, or that the rates charged were not such as are authorized by law therefor.

Defendant's answer, so far as we need consider the same, set up said employment of respondent by appellant in the capacities aforesaid, and that the rendition of said notarial service sued for was in due course of said employment, and included in his said compensation, which was duly paid and received. Defendant's answer further set up, by way of counterclaim, that during his employment as its agent, and as an assistant attorney-at-law, one R. M. Johnson began an action against the appellant, before a justice of the peace, to recover four hundred dollars for damages for killing a horse by defendant's cars, and alleged it was respondent's duty to settle said claim and suit, if a legal demand, and if not, to use proper care, ability and diligence, in the defence thereof; that respondent attended the trial thereof before the justice of the peace, and was there offered, and refused, a settlement thereof for the sum of one hundred and sixty dollars. Upon a trial thereof judgment was rendered for plaintiff therein, and said cause was appealed to the circuit court of Marion county, where, on account of this plaintiff's negligence, judgment was rendered by default against this appellant for the said sum of four hundred dollars, whereby appellant claims to have been damaged in said sum, and asks judgment therefor.

The reply of plaintiff, so far as we deem the same material, denied that, by the terms of his agreement, he agreed to serve defendant as an attorney at law, but claims and avers he agreed to give such assistance as he could in his capacity as stock agent, on the trial of causes for injury to stock, and that he was not in defendant's employ...

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17 cases
  • State ex rel. Rothrum v. Darby
    • United States
    • Missouri Supreme Court
    • March 6, 1940
    ...both waiver and estoppel are applicable to relator and preclude his right of recovery herein. Galbreath v. Moberly, 80 Mo. 484; Leach v. Railroad Co., 86 Mo. 27; Wood v. Kansas City, 162 Mo. 303, 62 S.W. 433; McNulty v. Kansas City, 201 Mo. App. 562, 198 S.W. 185; Henderson v. Koenig and St......
  • State ex rel. Rothrum v. Darby
    • United States
    • Missouri Supreme Court
    • March 6, 1940
    ...both waiver and estoppel are applicable to relator and preclude his right of recovery herein. Galbreath v. Moberly, 80 Mo. 484; Leach v. Railroad Co., 86 Mo. 27; Wood Kansas City, 162 Mo. 303, 62 S.W. 433; McNulty v. Kansas City, 201 Mo.App. 562, 198 S.W. 185; Henderson v. Koenig and St. Lo......
  • Galvin v. Kansas City
    • United States
    • Kansas Court of Appeals
    • December 5, 1938
    ...were applicable to plaintiff and precluded his right of recovery herein. Galbreath v. The City of Moberly, 80 Mo. 484; Leach v. Railroad Company, 86 Mo. 27; v. Kansas City, 162 Mo. 303, 62 S.W. 433; McNulty v. Kansas City, 201 Mo.App. 562, 198 S.W. 185; Henderson v. Koenig and City of St. L......
  • Galvin v. Kansas City, Missouri, 19126.
    • United States
    • Missouri Court of Appeals
    • December 5, 1938
    ...were applicable to plaintiff and precluded his right of recovery herein. Galbreath v. The City of Moberly, 80 Mo. 484; Leach v. Railroad Company, 86 Mo. 27; Wood v. Kansas City, 162 Mo. 303, 62 S.W. 433; McNulty v. Kansas City, 201 Mo. App. 562, 198 S.W. 185; Henderson v. Koenig and City of......
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