Clay v. Brown
| Decision Date | 17 May 1910 |
| Parties | OLIVER C. CLAY, Appellant, v. JAMES M. BROWN et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Lewis Circuit Court.--Hon. Chas. D. Stewart, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
E. R McKee and A. F. Haney for appellant.
(1) The court erred in giving to the jury instruction No. 6 on behalf of defendants. (a) This instruction wrongfully excludes the jury from considering the admissions of defendants arising from the failure of defendant Brown to answer or respond to the two letters written to him by plaintiff in the latter half of December, 1906. 1 Ency. of Ev., pp. 359, 361; Learned v. Tillotson, 97 N.Y. 1, 48 Am. Rep. 508; Advertising Co. v. Wanamaker & Brown, 115 Mo.App 270. (b) This instruction is erroneous for the further reason that the failure of defendant Brown to answer said letters is evidence of admission, not only against himself, but also against his co-defendant, Canton Milling Company. The property was in the name of the Canton Milling Company and the insurance was to be collected for it or in its name. Defendant Brown was president and manager and the spokesman and representative of the company in all its dealings with the world. Plaintiff was employed as attorney for both defendants and the agreement was that he would be paid by the defendants. Hence, plaintiff's letters to Brown asserting his claim of services performed in the matter of said property, operated also as notice thereof to the company. Mechem on Agency, sec. 729; Malecek v. Railroad, 57 Mo. 17; Smith v. Boyd, 162 Mo. 146. The managing officers of corporations have power to employ attorneys and counselors on behalf of their corporations, and they have this power without express delegations of power or formal resolutions to that effect. Bank v. Gilstrap, 45 Mo 419; Southgate v. Railroad, 61 Mo. 89; Rosenbaum v. Gilliam, 101 Mo.App. 126; Lewis v. Publishing Co., 77 Mo.App. 434; Maupin v. Mining Co., 78 Mo. 24; Thompson v. School District, 71 Mo. 495. (c) This instruction is erroneous for the further reason that the failure of defendant Brown to answer plaintiff's said letters is proper evidence of ratification by defendants of John Brown's act of employing plaintiff as their attorney. The authority or agency of a person may be shown by facts and circumstances showing that his acting as such was ratified. Robertson v. Clevenger, 111 Mo.App. 622; Middleton v. Railroad, 62 Mo. 579; Bank v. Fricke, 75 Mo. 178; Turner v. Railroad, 51 Mo. 501; Suddaith v. Lime Co., 79 Mo.App. 585. Neglect to promptly disavow such act will be binding on the corporation. Bank v. Fricke, 75 Mo. 178; Abbott's Trial Brief on Mode of Proving Facts (w. Ed.), 547. Said rule is applicable to corporations. Advertising Co. v. Wanamaker & Brown, 115 Mo.App. 270. (2) The court erred in giving to the jury instruction No. 3 on behalf of defendants. This instruction is erroneous because it debars the jury from considering the testimony of W. T. Hope to the effect that, sometime after the fire, defendant Brown told him that he had sent his brother, John Brown, to employ plaintiff to aid and assist in adjusting his insurance loss. (a) Said admission is proper evidence in support of plaintiff's case, because said James M. Brown is a party defendant herein, and there is evidence tending to show that he had obligated himself personally to the plaintiff in the matter of plaintiff's employment. Admissions of a party against his interest are always admissible in evidence against him. Sheperd v. Transit Co., 189 Mo. 362. An agent may contract in such a way as to render both himself and his principal responsible, whether his principal be or be not made known at the time of the contract. Story on Agency, sec. 270; Nichols, Shepard & Co. v. Kern, 32 Mo.App. 6; Ziegler v. Fallon, 28 Mo.App. 295. (b) The evidence of said admission by defendant, Brown, to witness Hope is also proper evidence for the jury to consider as impeaching the testimony of said Brown as a witness--and although no foundation is laid therefor. Owens v. Railroad, 95 Mo. 69. (3) But, said admission of defendant, Brown, to witness Hope is admissible not only against himself, but also as original evidence against defendant Milling Co. Lea v. Mercantile Co., 42 So. 415, 8 L. R. A. (N. S.) 279; Jones v. Williams, 139 Mo. 1.
Jerry M. Jeffries for respondents.
(1) An agent, unless a mere ministerial one, is personal, and the authority cannot be delegated by such agent. Grady v. American C. Ins. Co., 60 Mo. 116; Bowman Co. v. Lickey, 86 Mo.App. 61; Land & Lumber Co. v. Chisom, 204 Mo. 371. (2) Admission or statement of an agent, that he is an agent is absolutely incompetent in the trial of a case for the purpose of establishing an agency. Bank v. Morris, 125 Mo. 343; Bank v. Leyser, 116 Mo. 151; Carp v. Ins. Co., 203 Mo. 295; Craighead v. Wells, 21 Mo. 404. (3) Declaration of an agent made after the transaction has been completed and in no wise connected with it, are mere hearsay and are inadmissible against the principal. The declaration of such agent to be admissible must be a part of the res gestae and within a scope of his authority. Ins. Co. v. Fillingham, 85 Mo.App. 534; Helm v. Car Co., 98 Mo.App. 419; Oil Co. v. Jackson Z. Co., 98 Mo.App. 324; Phillips v. Mfg. Co., 129 Mo.App. 396; Rodman v. Railroad, 185 Mo. 1. (4) While a corporation acts through its officers and agents, an officer is nothing more than an agent of such corporation, and to make his admission binding upon the company, such admission must be made contemporaneous with his performing some business of the company. Ins. Co. v. Fillingham, 85 Mo.App. 534; Milling Co. v. Burns, 152 Mo. 350; Jones v. Williams, 139 Mo. 1. (5) The failure to answer letters asserting a demand is not an admission, by the person written to, of the indebtedness. Scott v. Haynes, 12 Mo.App. 597; Learned v. Tillotson, 97 N.Y. 1; Advertising Co. v. Wanamaker & Brown, 115 Mo.App. 270.
Plaintiff is an attorney at law practicing his profession in Lewis county. James M. Brown is president and chief stockholder in the Canton Milling Company, and is co-defendant with it. The Milling Company had a flour mill and elevator in Canton which were destroyed by fire in December, 1906, as were a large part of the contents. Policies of fire insurance had been issued on the property by some insurance companies to the amount of $ 18,500. Plaintiff alleges that thereafter and about December 12, 1906, he was employed by defendants as their attorney to advise and assist them in collecting the insurance on the property, or as much of it as could be collected, and defendants promised to pay him what his services were reasonably worth. Pursuant to this employment plaintiff rendered professional services to defendants, advising them about their claims against the insurance companies, with the result defendants were able to collect $ 16,500 of the insurance; that the reasonable value of his services was $ 500, for which he prayed judgment. In answer, defendant Brown denied the averments of the petition and further alleged he had no interest in the property covered by the insurance or in the insurance money except as a stockholder in the Canton Milling Company denied that either he or any one for him had contracted with plaintiff to collect the amounts due on the policies. The Milling Company for its separate answer denied the averments of the petition regarding the employment of plaintiff by defendants to collect the insurance money due the Milling Company for its loss, denied plaintiff was retained or employed to assist in any way about the matter or to furnish advice or render any services whatever; denied that by his advice and assistance the Milling Company was able to collect $ 16,500 or any other sum from the insurance companies; alleged if plaintiff had anything to do with the collection of the money or gave any advice about it, the fact was unknown to defendant and it was done without any contract of employment entered into by defendant; alleged no dispute arose between the insurance companies and the Milling Company in regard to the loss, but the amount due the Milling Company was adjusted and paid without contest. Plaintiff testified thus: He was employed to represent defendant James M. Brown and the Milling Company December 11, 1906, two days after the fire; on said day John Brown, brother of defendant James Brown, entered plaintiff's office, stated who he was, and that his residence was in Vienna, Illinois; said his brother James M. Brown was sick in bed and had sent him to employ plaintiff to aid in the settlement of the loss with the insurance companies; plaintiff conferred privately with said John Brown, got all the particulars of the loss from him and gave him advice about getting the books of the company together, all bills of purchases and other competent evidence to show the amount of the loss; said he conferred with John Brown about thirty minutes, when the latter left and he (plaintiff) never saw him any more; said he wrote James M. Brown that John Brown had called and employed him in an insurance matter, and James Brown never replied to the letter; plaintiff wrote again, twice, but received no replies to those letters; on June 2d, he wrote the fourth letter, stating John Brown had employed him and asked James Brown to call and settle. To this letter James Brown replied, admitting the receipt of the previous letters, but denying plaintiff had ever been employed or that he (James Brown) or the Milling Company owed plaintiff anything. Other testimony was given tending to prove plaintiff had been retained by John Brown with the knowledge and by the direction of James M. Brown. It was...
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