Cross v. Atchison, Topeka & Santa Fe Railroad Company

• Decision Date: 18 October 1897
• Parties: Cross v. Atchison, Topeka & Santa Fe Railroad Company, Appellant
• Court: Missouri Supreme Court

42 S.W. 675

141 Mo. 132

Cross v. Atchison, Topeka & Santa Fe Railroad Company, Appellant

Supreme Court of Missouri, Second Division

October 18, 1897

Transferred from Kansas City Court of Appeals.

Affirmed.

Spencer & Mosman and Thomas H. Morrow for appellant.

(1) There was an absolute want of actual authority in Mr. Lathrop to have made the contract upon which plaintiff seeks to recover. Boogher v. Ins. Co., 8 Mo.App. 534. (2) There is no evidence that Mr. Lathrop himself was anything more than a local agent. Dozier v. Freeman, 47 Miss 660; Hurley v. Watson, 36 N.E. 727; Hatch v Taylor, 10 N.H. 543; Bank v. Kortright, 22 Wend. 361; Bryant v. Moore, 26 Me. 87. (3) Mr. Lathrop in appointing plaintiff was acting under an express power, and plaintiff must be regarded as dealing with that power before him, and was bound at his peril to notice any limitations thereto presented, either by its own terms or by construction of law. Mechem on Agency, par. 273; Stainback v. Read, 11 Gratt. 288; Craycroft v. Selvage, 10 Bush. 708; Dozier v. Freeman, supra; Blackwell v. Ketcham, 53 Ind. 186; Mayberry v. Railroad, 75 Mo. 493; Railroad v. Apperson, 97 Mo. 310. (4) If an authority is to be implied, it must be implied from facts which have occurred in the course of the employment, and not from mere argument as to the utility and propriety of its possession by the agent. Howtayne v. Brown, 7 Mees. & Wels. 599; Burmester v. Norris, 6 Exch. 802; Stewart v. Woodward, 50 Vt. 81; Odiorne v. Maxey, 13 Mass. 181. (5) When one deals with an agent and has notice of the agent's want of power, the principal is not bound. Morris v. Watson, 15 Minn. 216; Ins. Co. v. Ins. Co., 4 Mo.App. 578. (6) The principal is not charged with notice of all acts done by its agent, but only with notice of those which are within the limits or scope of the power conferred. Smith v. Sublett, 28 Tex. 170. (7) When the question of authority of agents of a corporation is drawn in question it must be traced back to the board of directors. Railroad v. McVay, 98 Ind. 393; Bates v. Bank, 89 N.Y. 292. (8) The admission was only of an employment under the terms of Mr. Lathrop's letter of January 8 and was not an admission of employment upon terms which Mr. Lathrop had no authority to make. In order to determine the scope of the admission the whole answer must be observed and kept in view, and the admission is such as can be read from the answer as a whole and not otherwise. Detached portions of the answer can not be taken separately when it all applies to one subject-matter. It should be construed like any other instrument and like one entire conversation. Thomson v. Austen, 2 Dowl. & R. 358; Trommell v. Bassett, 24 Ark. 499; People v. Murphy, 39 Cal. 52; Searles v. Thompson, 18 Minn. 316; 1 Rice on Evid., p. 442.

O. H. Dean, James Gibson, W. D. McLeod, Hale Holden, Thomas H. Parrish and Thomas J. Porter for respondent.

(1) The employment of Mr. Cross by the defendant company is admitted in express terms in the answer. If he was employed the authority to employ must have existed, otherwise there could be no employment. (2) An agent binds his principal for everything within the apparent scope of his authority. Alpha Mills v. Engine Co., 21 S.E. 917; Hunter v. Jamison, 6 Ired. 252; Schram v. Strouse, 28 S.W. 262; Schwartz v. Morgan, 163 Pa. St. 195; Keim v. Lindley, 30 A. 1063; Glass v. Rowe, 103 Mo. 513; Singer Mfg. Co. v. McLead, 16 S.W. 912; Cox v. Albany Brew. Co., 58 Hun. 489; Tice v. Russell, 49 Minn. 66; Liddell v. Sahline, 55 Ark. 627; State ex rel. v. Gates, 67 Mo. 143; Baker v. Railroad, 91 Mo. 152; Samuel v. Bartee, 53 Mo.App. 587; Story on Agency, secs. 58, 59, 132; Mechem on Agency, 284, 350. (3) The stipulation of counsel can not be violated by the defendant. The stipulation between counsel as to what should be admitted in the conduct of this cause was presented for the first time in the court of appeals. The position taken now is against the stipulation. An attorney is not merely the agent of the court, but he is an attorney at law; he is in a very large sense the representative of the law in all judicial proceeding. He is not only an officer of the court licensed by it to appear before it in such proceeding, but is to a certain extent a public officer. State v. Garesche, 36 Mo. 256; Osborn v. Bank, 9 Wheat. 739; Commissioners v. Younger, 29 Cal. 147; Bonnifield v. Thorp, 71 F. 925; Nichols & Co. v. Jones, 32 Mo.App. 657; Barlow v. Steel, 65 Mo. 611.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an action at law for $ 1,250 alleged to be due plaintiff from defendant for legal services rendered by plaintiff to defendant in Clinton county, Missouri, from January 1, 1889, to December 31, 1890, at the agreed sum of $ 600 per year. The answer about which hangs the principal contention is in these words:

"Now comes the defendant and for answer to the petition of the plaintiff herein, admits that it is a corporation as in said petition charged, and that it employed plaintiff to act as its local attorney in Clinton county, in the State of Missouri, but defendant denies that it ever at any time agreed or promised to pay plaintiff a yearly or monthly salary of any sum or amount. On the contrary defendant avers and charges the fact to be that under the contract and agreement between plaintiff and defendant it was expressly agreed and understood that the compensation to be paid plaintiff for his services was dependent entirely upon the amount and value of services rendered by him; that he was to render from time to time an account of the services rendered and make a reasonable charge for the same, and in the event of any controversy between him and the defendant about the amount of any of his said charges, the same were to be referred to the then acting general solicitor of the defendant for final adjustment. Defendant states that plaintiff has failed and refused to render to defendant an itemized account of the services rendered by him in accordance with the terms of his said employment and the amount thereof has never been agreed upon between the plaintiff and defendant; that prior to this suit a controversy existed, and now exists, between plaintiff and defendant about the amount of his charges and that the general solicitor of defendant has never adjusted the amount due for plaintiff's said services. Defendant states that this was the only contract ever entered into by it with plaintiff and it denies each and every allegation in said petition contained not expressly admitted."

The reply to the answer of defendant is a general denial.

The facts are simple. John A. Cross, the plaintiff, is an attorney at law, residing at Lathrop, Clinton county, Missouri. Prior to the acquisition of the St. Joseph & St. Louis Railroad by the Atchison, Topeka & Santa Fe Railroad, plaintiff had been the local attorney for the St. Louis & St. Joseph Railroad in Clinton county, at a fixed salary of $ 600 a year. In 1888 the Atchison, Topeka & Santa Fe Railroad bought the St. Joseph & St. Louis Railroad and made it a part of its system in this State. In January, 1889, Gardiner Lathrop, Esq., was placed in charge of the legal department of the Atchison, Topeka & Santa Fe for the States of Missouri and Iowa, and on the eighth of January, 1889, wrote plaintiff as follows:

"Kansas City, January 8th, 1889.

"Hon John A. Cross, Lathrop, Mo.

"Dear Sir: -- The legal department of the St. Joseph, St. Louis & Santa Fe Railway Company has been placed in my charge and you are hereby appointed local attorney for that company of Clinton county, Missouri. Reasonable charges for services are to be made, and bills therefor sent to me from time to time. In the event of any controversy as to the amount of any charges, the matter shall be referred to the then acting general solicitor of the railway company for his final adjustment. Please signify your acceptance of the appointment upon the terms named. Please make report to me of all cases now upon the docket of the courts of Clinton county, in which the railway company is a party, giving me nature and present condition of the cases. Yours truly,

"Gardiner Lathrop, Attorney."

The testimony on the part of plaintiff tended to prove that he declined to accept employment from the new company on the terms offered in Mr. Lathrop's letter but that he went to Kansas City and saw Mr. Lathrop and made an arrangement with him by which Mr. Lathrop agreed to retain plaintiff as attorney for the Atchison & Topeka in Clinton county at the same rate, on the same terms, and he was to have the same authority that he had during his two previous years of employment by the St. Joseph, St. Louis & Santa Fe Railroad to wit, he should appear for said railroad in all courts in said county, he should investigate all claims brought against it in said county, and if he thought them meritorious he had authority to settle them forthwith; that plaintiff so understanding his agreement with the company, went forward and served the company for the two years sued for and never kept or rendered an itemized account. The plaintiff denied that he had agreed that he would submit an itemized account for the approval of the general solicitor; that Mr. Lathrop did not tell him that no yearly or monthly salaries would be paid attorneys and that defendant would not employ him on that plan. The evidence also tended to show plaintiff's services were satisfactory and assurances were given after they were rendered that the account should be paid in full. On the part of the defendant Mr. Lathrop testified and denied that he made an agreement to pay plaintiff $ 600 a year for his services. He states that Mr. Cross came to Kansas City to see him after the letter of January 8...