City of Memphis v. Adams

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 518
• Court: Tennessee Supreme Court
• Parties: THE CITY OF MEMPHIS v. ADAMS, DIXON & PIKE.

56 Tenn. 518

THE CITY OF MEMPHIS

v.ADAMS, DIXON & PIKE.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal in error from the judgment of the 1st Circuit Court, January Term, 1871. C. W. HEISKELL, J.

W. M. RANDOLPH for appellant.

ELLETT & PHELAN for appellee.

NICHOLSON, C. J., delivered the opinion of the Court.

Adams, Dixon & Pike, a firm of Attorneys at Law, brought this suit, in the first Circuit Court of Shelby county, to recover of the City of Memphis five thousanddollars ($5,000), for professional services, rendered in attending to the interests of the City in certain matters of litigation in Arkansas, touching the stock owned by the City in the Memphis and Little Rock Railroad Company. The City of Memphis pleaded nil debit; and that plaintiffs were not employed; and that they never performed any services for defendant. Issues were made upon these pleas, and the cause submitted to a jury, who rendered a verdict for plaintiffs for three thousand nine hundred dollars, ($3,900), after allowing a credit for eleven hundred dollars, ($1,100), for which judgment was rendered. From this judgment defendant has appealed in error.

The facts on which the questions to be determined arise, are as follows:

In 1869 the City of Memphis was a stockholder, to the amount of five hundred and seventy-two thousand dollars, ($572,000), in the Memphis and Little Rock Railroad Company. Serious trouble sprang up as to the legality of two rival Boards of Directors of the Railroad Company, each claiming the right to possess and control the operations of the Company; heavy litigation was pending between the rival Boards, in the results of which the City of Memphis had a deep interest, inasmuch as it was probably the largest stockholder. In this state of things, the Mayor of Memphis deemed it his duty to take prompt and efficient measures to have the interests of the City in the litigation properly represented and protected. Thereupon, John W. Leftwich, the Mayor, with the approval of the City Attorney, engaged the services of C. W. Adams, Esq., of the firm of Adams, Dixon & Pike, to represent the City at Little Rock, in Arkansas, where the litigation was pending. For this purpose the following paper was prepared and delivered to Gen. Adams:

“Memphis, Tennessee,

Mayor's Office, Nov. 17, 1869.

C. W. Adams, Esq., of the City of Memphis, is hereby constituted the Attorney for the City of Memphis, to represent the interest of the City in any matter touching the stock of the Memphis and Little Rock Railroad Company, owned by the City of Memphis. And he is hereby authorized to defend any suit that may be instituted concerning said stock, and is authorized to institute all legal proceedings in any court for the protection of said stock against all persons or parties.

+--------------------------+
                ¦[Seal.]¦JOHN W. LEFTWICH, ¦
                +--------------------------+
                

+---------------+
                ¦Attest: ¦Mayor.¦
                +---------------+
                

L. R. Richards, City Register.”

Under this authority Gen. Adams proceeded to Little Rock, and engaged actively and efficiently in the pending litigation, and so continued, to the neglect of his other professional business, until the interests of the City were successfully maintained and established. The proof is abundant, and without conflict, that the services rendered by Gen. Adams were reasonably worth five thousand dollars, ($5,000.) After the services were performed, the firm of Adams, Dixon & Pike made out their account, and presented it to the City for settlement, when one Branch of the City Government voted to pay them three thousand dollars, ($3,000), and the other Branch one thousand dollars, ($1,000.) As the two Branches disagreed as to the amount, no appropriation was made, although the two Branches by their action concurred in recognizing the employment of Gen. Adams as their counsel, and their liability to pay for his services.

The counsel for the City furnished the presiding Judge with nine distinct propositions, and requested him to give them as instructions to the jury--but the Judge declined to do so, except so far as they are contained in his charge, which was as follows:

“You are instructed that the seal of the Corporation to an instrument constitutes prima facie evidence, that it was planted there by the proper authority; and that the instrument is the act of the Corporation; and, therefore, if you find from the testimony that the defendant's official seal is planted to the instrument read to you in evidence, and attested by the Register of the City, you will, without proof to the contrary, find the employment of the plaintiffs. If you find the employment, you will then look to the testimony, and from it determine what the services rendered were worth.”

We have seen that the proof in the case fully warranted the jury in finding, that the services rendered by Gen. Adams for the City, were reasonably worth five thousand dollars, ($5,000.) It follows, that the case must necessarily turn upon the question, whether the evidence of the employment of Gen. Adams by the City was sufficient to bind the City to pay for his services.

It is conceded, that the presumption is, that the corporate seal was properly placed upon the warrant of attorney given to Gen. Adams. But it is said, that the instrument, with the seal upon it, was not sufficient of itself, and without reference to the question whether the Mayor had authority to make the instrument, in behalf of the City, to bind the City. This, adds the counsel for the defendant, is what the Court told the jury--viz.: that the instrument, having the seal upon it, was conclusive upon the City.

Is this the fair interpretation of the language of the charge? After telling the jury, that the fact that the seal was attached to the instrument furnished prima facie evidence that it was placed there by proper authority, the Court added, “therefore, if you find that the official seal is planted on the instrument and attested by the Register, you will, without proof to the contrary, find the employment of the plaintiffs.” It is obvious that the counsel has not correctly interpreted the language of the charge. By reference to the case of Levering v. Mayor etc. of Memphis, 7 Hum., 558, it is apparent that the Court, in the present case, has not laid down the law as strongly for the plaintiffs as it was stated in that case by Judge Green: He there said--“it is sufficient to observe, that the seal of a corporation to an instrument constitutes prima facie evidence that it was planted there by the proper authority, and that the instrument is the act of the corporation. In the absence of proof to the contrary, this contract must be taken to be the act of the Corporation, without reference to the authority of the committee.” In that case, the Board of Aldermen had appointed a committee of three to make a contract for grading the streets. The contract was signed by only two of the committee, and one of the questions in the case was, Whether the Corporation could be bound unless all three of the committee signed the contract? Judge Green said, it was not necessary to decide whether the execution of the contract by two was sufficient, inasmuch as they had the seal of the Corporation annexed to the contract. As the Corporation speaks through its seal, the fact that the seal was annexed raised the presumption that it was the act of the Corporation, and this presumption would stand until overturned by contrary proof.

So, in the present case, the Circuit Judge did not assume that the Mayor had the authority to employ plaintiffs as Attorneys, but as the seal of the Corporation was annexed to the instrument, he told the jury that this fact raised the presumption, that the employment was by the Corporation, and this presumption would stand until overturned by contrary proof. He did not say that the fact of the seal being annexed was conclusive of the employment, as was assumed in the argument. The charge...