Bates v. Holladay

• Decision Date: 22 May 1888
• Parties: PIETY E. BATES et al., Appellants, v. HIRAM N. HOLLADAY, Respondent.
• Court: Missouri Court of Appeals

31 Mo.App. 162

PIETY E. BATES et al., Appellants, v. HIRAM N. HOLLADAY, Respondent.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

Appeal from the Butler Circuit Court, HON. JOHN G. WEAR, Judge.

Reversed and remanded.

WILLIAM N. NALLE, for the appellants: The allegation in the answer that Geo. Bates, co-plaintiff, as agent, on or about the ______ day of August, 1884, abrogated said contract, does not present an issue upon that subject, it not appearing that he had any power or authority to do so; nor before a breach by defendant of the contract; nor did defendant act promptly upon it. Edwards v. Weeks, Fourche's Sel. Cas 699; Melton v. Smith, 65 Mo. 315. George Bates' declarations, if true, in the absence of P. E. Bates, for whom he acted as special agent only, were not competent to modify, alter, or rescind the contract, unless it had been shown that he had authority to make such declarations. It will not be presumed that he had such authority from his acts in general in that employment or business. Dickerson Co v. Ins. Co., 41 Ia. 474; Ewell's Evans on Agency (Ed. 1879), 2, 3, note; Ayers v. Milroy, 53 Mo. 516; Chouteau v. Filley, 50 Mo. 174; Barrett v. Railroad, 9 Mo.App. 226; Wheeler v. Givan, 65 Mo. 89; Allee v. Fink, 75 Mo. 100. Plaintiff was a married woman; her husband was the agent to manage her business under the contract; a written authority to rescind, etc., was necessary under our statutes. Sess. Acts, 1883, p. 113; Eystra v. Capelle, 61 Mo. 578; Alexander v. Rollins, 14 Mo.App. 109; McGinnis v. Mitchell, 21 Mo.App. 493. The court having permitted the jury to hear these declarations, it was competent for plaintiff to show that her agent had no authority to rescind or alter her contract with defendant by such a declaration, or any other. State v. Cooper, 83 Mo. 698. The testimony of Hettie Anderson that related to George Bates' talk to her was in no sense competent. If George had attempted to suborn her in fact, it was a matter for the grand jury to investigate and not for a petit jury trying issues in which he had no interest. Why the jury returned a verdict for the defendant and assessed his damages at one hundred and twenty dollars, can only be explained upon the hypothesis that it was the result of prejudice, or passion. The defendant did not ask it. The court did not direct them to assess any damages to him; the profits did not warrant it. The most defendant could have recovered, even though plaintiff's whole claim should have been ignored, was seventy-eight dollars, and that only upon the theory that the contract was never abrogated. The verdict must accord with the instructions. Rafferty v. Railroad, 15 Mo.App. 559.

SETTLE & BUGG and S. M. CHAPMAN, for the respondent: The objection urged to the cross-examination of the plaintiff Bates is not well taken. In his examination in chief, he testified that he was the husband of his co-plaintiff; that he bought the saw-mill at Keener, Missouri, for her, and that he was her agent to " attend to all of the business" of the company (himself and wife) " connected with the saw-mill." It was, therefore, clearly competent, upon cross-examination, to interrogate him as to the entire case, and show the relation and connection he sustained to the business. Page v. Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26, 30; Railroad v. Silver, 56 Mo. 265; State v. Brady, 87 Mo. Mo. 142, 145; 1 Greenl. on Evid., sec. 445. Having testified in chief, on behalf of himself and co-plaintiff, he does not become the witness of the opposite party by being cross-examined. 1 Greenl. on Evid., secs. 446, 447; Railroad v. Silver, 56 Mo. 265; State v. Douglass, 15 Mo.App. 1; Drew v. Arnold, 85 Mo. 128; Beal v. Nichols, 2 Gray (Mass.) 262, 264; Moody v. Rowell, 17 Pick. 490, 498; Jackson v. Varick, 7 Cow. (N. Y.) 238. The entire evidence establishes that if the plaintiff George Bates was not the absolute owner of the mill and the business connected with it, that he managed, conducted, and controlled all the business connected with the mill, after his purchase; that his co-plaintiff, Piety E. Bates, had no connection with its management, but intrusted the entire matter to her co-plaintiff, thus constituting him, in the broadest sense, her general agent, and was, therefore, bound by his acts. 2 Kent Com. [11 Ed.] s. p. 620; 1 Greenl. on Evid., sec. 113; 2 Wharton on Evid., sec. 1173; McGinness v. Mitchell, 21 Mo.App. 493; Brooks v. Jameson, 55 Mo. 505, 512; White v. Railroad, 19 Mo.App. 400; Hull v. Jones, 69 Mo. 587. The authority of an agent will be measured and determined by the nature of the business, interests, and dealings of his principal, and will be held to be co-extensive with the requirements of the business with which he is entrusted. Gentry v. Ins. Co., 15 Mo.App. 215; Summerville v. Railroad, 62 Mo. 391; Franklin v. Ins. Co., 52 Mo. 461; Edwards v. Thomas, 66 Mo. 468. The fact of agency is proven and admitted by the plaintiffs; and the jury has found that the acts and doings of the plaintiff, George Bates, was within the scope of his authority as agent, and binding upon his co-plaintiff. McGinness v. Mitchell, supra; Barrett v. Railroad, 9 Mo.App. 227. The extent of the agent's authority is a question of fact to be settled by the jury, and where there is any substantial evidence to sustain the finding, the verdict and judgment of the trial court will not be disturbed. Thompson v. Russell, 30 Mo. 498; Bank v. York, 89 Mo. 369; Huckshorn v. Hartwig, 81 Mo. 648; Papin v. Allen, 33 Mo. 260; Memphis v. Matthews, 28 Mo. 248. A written contract may be changed by a subsequent oral agreement ( Monahan v. Finn, 13 Mo.App. 585), and, " whether they have done so is a question for the jury." Vastine v. Wyman, 5 Mo.App. 598; Fine v. Rogers, 15 Mo. 315, 321; Day v. Ins. Co., 88 Mo. 331; Bunce v. Beck, 43 Mo. 266; Henning v. Ins. Co., 47 Mo. 425; 1 Greenl. on Evid., secs. 303, 304; Kennebeck Co. v. Ins. Co., 6 Gray 204, 214. Where a party sues upon a contract, he must, as a prerequisite to a right of recovery, establish performance on his part, or a valid reason for his failure to do so. Downey v. Burke, 23 Mo. 228; Davis v. Smith, 15 Mo. 467; Dermott v. Jones, 2 Wall. 1, 7.

OPINION

THOMPSON J.

This is an action brought by a married woman, with whom her husband is joined, to recover liquidated damages for the breach of a contract. The answer, after a general denial, admitted the contract, setting it out in detail. It then pleaded various breaches of it. It also pleaded a subsequent parol modification of it, and a breach of the supplementary parol agreement; and claimed damages for these breaches by way of counterclaim. A trial was had before a jury, who returned the following verdict: " We, the jury, find the issues for the defendant and assess his damages at the sum of one hundred and twenty-five dollars and costs." Upon this verdict a judgment was rendered in favor of the defendant for one hundred and twenty-five dollars and costs, and the plaintiffs have appealed.

Many errors are assigned by appellants touching the admission and rejection of evidence, and the giving and refusing of instructions. Most of them are so clearly untenable as not to require special observation.

I. Though not assigned for error or made the ground of a motion in arrest of judgment, it is perhaps the proper subject of observation that the verdict is irregular in that it does not dispose of all the issues. It should have found for the defendant upon the issue joined upon the petition and also for the defendant upon his counter-claim, and should have assessed the damages upon the counter-claim. We mention this irregularity in view of the possibility of another trial, adding that, as it was not called to the attention of the trial court by the proper motion, or even assigned for error here, we do not make it the ground of reversing the judgment.

II. The contract which is the subject of the action related to the sale of lumber by the female plaintiff to the defendant which lumber was made at a mill owned and operated by her through the agency of her husband. The evidence of her husband was to the effect that as her agent he attended to all her business connected with the mill. As such, he made the arrangement with the defendant and other parties, by which she became the successor of such other parties in the contract which is the subject of the suit. It was set up in the answer and shown in the defendant's evidence, that the contract sued on had been verbally rescinded or abandoned by the husband of the beneficial plaintiff before the breach of it for which the action is brought. In anticipation of this defence the counsel for the plaintiff asked the plaintiff's husband whether he had any authority or power from his wife, the co-plaintiff, to modify or rescind the contract with the defendant, and if so, what was it. This evidence was objected to by the defendant, and the objection was sustained. As no offer was made to show that the defendant had knowledge of any limitations upon the authority or power under which the plaintiff George Bates was acting for his wife, and as his own evidence, given for...