Flournoy v. Phœnix Brick & Const. Co.

• Decision Date: 06 November 1911
• Court: Missouri Court of Appeals
• Parties: FLOURNOY et al. v. PHŒNIX BRICK & CONST. CO.

140 S.W. 752

159 Mo. App. 376

FLOURNOY et al. v. PHŒNIX BRICK & CONST. CO.

Kansas City Court of Appeals. Missouri.

November 6, 1911.

1. JURY (§ 120) — CHALLENGE TO PANEL — OBJECTIONS — EVIDENCE.

Where there was no proof showing how or by whom a jury panel was selected, the overruling of a challenge, on the ground that it was selected under a statute which did not apply to the county where the jury was drawn, was properly overruled.

2. CORPORATIONS (§ 407) — AUTHORITY OF AGENT — EMPLOYMENT OF ATTORNEY.

Where a promoter, engaged in inducing street improvement orders for defendant on commission, was authorized to employ counsel to see that resolutions and ordinances for paving and contracts for doing the work complied with the law, it was within the apparent scope of his authority to contract for legal services on defendant's credit, notwithstanding a secret agreement that the cost of such services should be paid out of the promoter's commissions.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by William S. Flournoy and others against the Phœnix Brick & Construction Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Eugene Silverman, for appellant. Frank H. Miller and Robert C. Bell, for respondent.

BROADDUS, P. J.

Quantum meruit. The plaintiffs, attorneys at law, are seeking to recover from the defendant corporation compensation for legal services alleged to have been rendered in its behalf.

It appears from the evidence that in the spring of 1909, the appellant was endeavoring to secure a large contract for street paving in the city of Independence, Mo.; that its agent, James T. Ware, did in fact secure the contract for appellant for such street paving in said city; that during the progress of the business said Ware employed respondents to prepare certain resolutions and ordinances, and to examine the contracts and proceedings of the city government, relating to the pavement of the streets, as to their legality; and that respondents, in pursuance of such employment, prepared the resolutions and ordinances passed by the city council, and the contract for doing the paving.

The president of the company testified that Ware was never in its employ, but that he was promoting on a commission. "Q. What do you mean by promoting? A. That is, he went out to secure business. Q. Secure what? A. Paving ordinances; ordering work — paving — done at different places; he would go out and solicit among the property owners and get them to sign. Q. What other things in that connection would he attend to, if anything? A. The legal proceedings, and everything attached to it. Q. How was his compensation determined? A. By the yard; he was to receive 10 cents per yard. Q. Of all the paving that you put down? A. Any work that was completed." He further stated that the company was under no obligation to Ware in the event it put down no pavement, and that there was no agreement or understanding that he had the authority to bind the company.

Ware testified: "As promoter, it was my duty to secure the passage of resolutions and look after the legality of the question; and I have always employed an attorney to look after that feature." That he employed plaintiffs, and said the matter of payment would be deducted from his commissions. He was then asked if he explained to Mr. Flournoy that would be the method in this case. "A. I can't say that I did." He stated, however, that he remembered telling Mr. Flournoy that if he would make out the bill that he would send it in to the company for payment, and that he did not remember that he told him what his usual custom was.

It was shown that Halsey, president of the company, was present at Independence while the proceedings were pending before the city council. Mr. Flournoy testified that Mr. Halsey told him that Ware represented the company in the matter of getting the contracts. But this was after he had performed a great part of the service. He stated, however, that he had no knowledge or understanding at the time Ware employed his firm that he was the agent of the company, but that he supposed he was as he...