Curry v. Dahlberg

• Decision Date: 09 December 1937
• Parties: Charles C. Curry, Appellant, v. B. G. Dahlberg
• Court: Missouri Supreme Court

110 S.W.2d 742

341 Mo. 897

Charles C. Curry, Appellant, v. B. G. Dahlberg

Supreme Court of Missouri

December 9, 1937

Rehearing Granted, Reported at 341 Mo. 897 at 910.

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge; Opinion on Motion for Rehearing reported in 112 S.W.2d 345.

Motion overruled.

Burnett Stern & Liberman, Samuel H. Liberman and Robert L Aronson for appellant.

(1) The theory adopted at the trial will prevail on appeal. Knapp v. George Knapp & Co., 127 Mo. 70, 29 S.W. 885; Harger v. Barrett, 319 Mo. 633, 5 S.W.2d 1100; Titus v. North K. C. Devel. Co., 264 Mo. 229, 174 S.W. 432. (2) In equity cases the appellate court reviews, and passes upon the merits of, the entire case. Price v. Morrison, 291 Mo. 249, 236 S.W. 297; Brightwell v. McAfee, 249 Mo. 562, 155 S.W. 820.

Ewing, Ewing & Ewing for respondent.

However, because respondent did not see fit to raise the question in the court below is no reason why it may not be raised here by the court of its own motion. The rule of law is: "When the defendant does not set up the defense of illegality (to the contract), but such illegality appears from the case as made by either the plaintiff or defendant, it becomes the duty of the court sua sponte to refuse to entertain the action." 15 Am. & Eng. Enc. Law (2 Ed.) 1015. The authorities in this country and in England are overwhelmingly and almost unanimously in favor of the above rule. We cite the following English cases: Scott v. Brown, 2 Q. B. 724; Ribbans v. Crickett, 1 B. & P. 264; Evans v. Richardson, 3 Meriv. 469.

OPINION

Hyde, C.

This case, coming recently to the writer, is an action to recover certain amounts alleged to be due plaintiff under a contract made in July, 1914. Suit was commenced in 1918. The amount alleged to be due plaintiff, under the facts stated in the second count of his fourth amended petition is $ 43,529.77. In other counts, it was alleged that other and additional amounts were due plaintiff but that an accounting was necessary to determine these amounts and the total sum due from defendant to plaintiff. The court sustained a demurrer to all counts except the second, and upon trial on the second count, before the court without a jury, finding and judgment was for defendant. Plaintiff has appealed from this judgment.

One phase of this case was before this court in Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606. The second count of the petition upon which the case was tried contained substantially all of the allegations set out in Dahlberg v. Fisse. Because of the view we take, it is not necessary to rule the assignments on the demurrers, so we will not state the allegations made in other counts. Plaintiff was engaged in the lumber business. He had started to work in that business when he was sixteen years old and, in 1914, had been engaged in that business for about thirty years. He was not a lawyer. Defendant was described as a commerce expert or rate expert, "and as such had formed an organization for the acquisition of contracts for refunds exacted in violation of the maximum freight rate acts of Missouri of 1905 and 1907." [See State ex rel. Barker v. Chicago & Alton Railroad Co., 265 Mo. 646, 178 S.W. 129; White v. Delano, 270 Mo. 16, 191 S.W. 1012; State of Missouri v. C., B. & Q. Railroad Co., 241 U.S. 533, 36 S.Ct. 715, 60 L.Ed. 1148; Missouri Rate Cases (Knott v. C., B. & Q. Railroad Co.), 230 U.S. 474, 33 S.Ct. 975, 57 L.Ed. 1571.] In July, 1914, defendant had eight solicitors in Missouri who were seeking to persuade shippers in Missouri to turn over their claims for freight overcharges to defendant for collection. Defendant was not a lawyer but signed the claimants' names, to petitions and claims filed in court, "by B. G. Dahlberg as agent for the petitioners," and had them presented by lawyers employed by him.

Contracts made between such shippers and defendant usually contained the following provisions:

"In consideration of your furnishing to me freight bills, and/or other necessary data, covering shipments made by you, or on your account, during the last nine years, on which the freight charges have been paid by you, or on your account, I agree to audit the same. If overcharges of any kind exist (including overcharges by virtue of the so-called Missouri Rate Case), on which recovery may be had, I will file claims and diligently prosecute same for your account and in your name, the vouchers to be drawn payable to your order in my care.

"In consideration of my services you agree to pay me fifty per cent of all amounts recovered, as soon as vouchers therefor have been received by you, which shall be my only compensation for my services.

"It is further understood and agreed that if this offer is accepted, you will turn over to me all freight bills covering all shipments for said nine year period, to be handled as aforesaid; that where all freight bills are not available, you will furnish me such other data as I may request, including car numbers, dates of shipments, etc., together with the names of consignees; and that you hereby give me authority to take up with the several consignees for the surrender of said freight bills, or such other data as they may be able to furnish, said freight bills and said information to be used for your account, in accordance with the conditions of this contract.

"It is further understood and agreed that I am to have exclusive control of the handling of the overcharges covered by this contract."

The circumstances of plaintiff's relations with defendant, and the terms of the contract sued on, are stated in plaintiff's brief, as follows:

"An agent of defendant named Shaw called upon plaintiff to solicit any claims plaintiff might have for recovery of excessive charges from the railroads. Plaintiff had no such claims, but was interested in the situation as the result of Mr. Shaw's explanation thereof, and expressed the thought that he might help defendant. As a result plaintiff and defendant met in St. Louis on July 2, 1914. At that meeting they reached an informal agreement, of which the plaintiff made some pencil notations. Defendant took this penciled memorandum to St. Paul with him and there prepared a letter which came to constitute the contract between the parties. . . . It is as follows:

"'Office of B. G. Dahlberg

"'Commerce Expert

"'1601-2-3-4 Pioneer Building

"'St. Paul, Minn.

"'July 9, 1914

"'(Personal)

"'Mr. Chas. C. Curry,

"'Wright Bldg.,

"'St. Louis, Mo.

"'Dear Mr. Curry:

"'This will confirm arrangements made with you in St. Louis last week as follows:

"'On all contracts for handling of refunds under the Missouri State rate case which you secure for me or assist me to secure, I will pay you the following proportion of my gross compensation in connection with such contracts:

"'20% in case it is not necessary to go to trial in court; 15% in case claims are settled after court trial, but before the cases come to trial before the Supreme Court of the United States; 10% if the cases go to trial in the United States Supreme Court. These payments are to be made to you immediately I secure payment of my proportion from the clients.

"'All contracts to be taken subject to my individual approval, and no contracts to be negotiated where my gross proportion is to be less than 50% without my previous approval, except the following firms with whom you may negotiate on basis 25% of the principal and 50% of any interest recovered: (Eleven firms listed.)

"'This memo will cover all contracts secured by you or by me covering lumber, poles, posts and ties not already signed for my account, except

"'Gideon Anderson Lumber Co.

"'Any contract secured for me by the Hardwood Dealer's Association.

"'It is understood that this agreement is to be in force and effect during such time as you actively engage in the proposition. If, for any reason, you discontinue the work, then this agreement is canceled and will only apply and be construed to apply to such contracts as may have been secured under this agreement during the period it is in force.

"'It is the sense of this agreement, and it is specifically agreed that we will mutually render each other all assistance possible for the successful prosecution of the work covered hereby.

"'Any expenses in connection with this work incurred by you are, of course, to be paid by you, except that where necessary to draw off from the shippers' books information upon which to bring and prosecute claims, I will have my auditors do this work.

"'It is understood that this forms a special partnership between us for the handling of the particular matters referred to in this memo, subject to the conditions and terms contained in this memo; it being further understood that no liability will be assumed by me for any disbursements made by you, or liabilities which may be contracted by you. I am to be kept fully informed of the progress of the work, and to receive prompt report of all contracts and negotiations made. (Signed) B. G. Dahlberg.

Memo:

"'The above is agreed to and accepted by me this 13th day of July 1914.

"'(Signed) Chas. C. Curry.'

"At his own expense, plaintiff interviewed persons, firms and companies which might possibly have claims against the railroads for overcharges. By correspondence he contacted innumerable shippers. His activities extended over a period of more than two years. From time to time contracts with shippers of lumber, posts, poles and ties were obtained. All contracts were taken in the name of defendant. Some were obtained by plaintiff or with his assistance, and some were obtained otherwise. The claims thus obtained were not directed against any one railroad alone but went against all railroads...