East Line & R. R. R. Co. v. Scott

Citation10 S.W. 99
PartiesEAST LINE & R. R. R. CO. <I>v.</I> SCOTT.
Decision Date20 November 1888
CourtSupreme Court of Texas

Appeal from district court, Marion county; W. P. McLEAN, Judge.

Action by William F. Scott against the East Line & Red River Railroad Company. Defendant appeals.

F. H. Prendergast, for appellant. C. A. Culberson and H. McKay, for appellee.


The general nature and result of this action are thus stated in the brief of counsel for appellant: "On November 10, 1886, W. F. Scott filed suit in the district court of Marion county against appellant, alleging that he was injured by the appellant in 1882; that he filed suit for damages, which was compromised in 1884 by the railroad paying him $4,500, and agreeing to employ Scott as engineer so long as he desired to be employed; that they paid the $4,500, but when Scott applied for employment on July 1, 1886, they refused to employ him. Defendant denies the agreement, and says if any such agreement was made with Campbell & Taylor they had no authority to make it; that the agreement was void because not in writing, and not to be performed in a year; the agreement was contrary to public policy, and was not incorporated in the judgment which contained the settlement in 1884, and was not mutually binding on both parties, and indefinite. January 14, 1888, judgment for $2,400 for plaintiff. Defendant appealed."

The petition alleges so much of the compromise agreement as affects the case before us, as follows: It was further agreed "that the said company would thereafter employ plaintiff when this plaintiff should ask for and accept service and employment by the said company in the running and operating its said railroad in the employment of locomotive engineer, — that then being, and still is, the trade, occupation, and profession of your petitioner, — for whatever length of time which your petitioner might desire to retain such employment, and at the reasonable and customary pay and wages of such employe on railroads, which then was and still is from one hundred to one hundred and fifty dollars per month, which settlement and compromise your petitioner did then and there accept in full satisfaction and settlement of all his claim for damages." The petition then alleges that appellee prepared about July 1, 1886, to enter appellant's service as contemplated by the compromise agreement, but that appellant refused to receive his services, or pay for them, and then proceeds as follows: "That the said services and the wages therefor are and would be worth to your petitioner the sum of, to-wit, one hundred and fifty dollars per month from the 1st day of July, 1886, for a reasonable period of about the next ten years; that plaintiff is now a man of about thirty-six years of age, and has reasonable expectation of living and exercising his said trade and profession for the next ten years; and so plaintiff says that he has been damaged by said company in the sum of, to-wit, twenty thousand dollars, wherefore," etc.

The evidence offered for appellee was sufficient to show, if uncontroverted, that E. W. Taylor, who may have been assistant secretary for the company, and Col. Campbell, an attorney representing the company in the defense of that case, may have made an agreement at the time of and as a part of the compromise looking to the future employment of appellee. The statement of appellee in regard to that is: "I finally told them I would take $4,500 if they would give me a job on the defendant's road; that is, that they would give me the position of locomotive engineer on the road, such as I had, for life. I told Col. Campbell that I wanted it fixed up so that I could not be fired, — meaning that they could not discharge me. He answered that he did not know so much about that. I told him he could fix it that way, and he finally said, `All right, let it go that way,' and the contract as above stated was agreed upon." Another witness who was present stated that the agreement was "that the road would pay $4,500, and give plaintiff a position of engineer for life." The testimony of appellee as to his application for employment is that "about June 28, 1886, I applied to Col. E. W. Taylor for work on the road under the contract, and told him I was ready to go to work." He then states that Taylor gave him a letter of recommendation to the company's master mechanic, who referred him to Mr. Clark, his superior in authority, whose business it was to employ engineers. In reference to his interview with Clark he states: "I then saw Clark about it, stating what I wanted, and my case. He says to me: `You had a suit against the company, didn't you?' I told him I did. He said, `I have no place for you.' I then told him, `Good morning,' and left. * * * I would have taken the position of engineer for life, and I supposed I had an expectation of living perhaps ten years."

The appellant asked the court to instruct the jury that, "there being no proof before you that Campbell had any other authority than as the attorney for defendant, you are charged that an attorney would not have authority to make the contract sued on, merely because he was attorney. Therefore the contract made by Campbell cannot bind the company." This charge was refused, and correctly so, if there was any evidence tending to show with reasonable certainty that Campbell had authority to make the compromise. That he did agree to a compromise judgment which the appellant recognized and satisfied, is rendered clear by the evidence before us. The jury might look to this, although it is not directly shown that he had authority to make that part of the agreement not carried into the judgment, as tending to show that he had authority to make a compromise. Col. Campbell was not alive at the time of the trial, and his testimony seems not to have been taken. While an attorney, by virtue of his employment, has not authority to make a compromise of an action he is employed to prosecute or defend, it is not to be presumed when one so situated assumes the right to exercise such a power, and does exercise it, that this was done without lawful authority, and but slight evidence, in such a case, may be sufficient to authorize the belief that he was clothed with all the power he assumed to exercise. That Col. Campbell agreed to the compromise judgment is not controverted. His power to do that is not questioned, though the manner in which it was conferred is not shown. He reported the compromise judgment, and those who seem to have had general control of the litigation of the company found no fault with his action, but approved it for payment, and the company satisfied it. The inference from the evidence is very strong that in reference to the persons who were injured at the same time appellee was, — of whom there were many, — Col. Campbell may have been given all the power he assumed to exercise. E. W. Taylor testified "that when plaintiff was injured, on August 7, 1882, on the road, many others were also injured, and several were killed. Witness, as agent and interested party, had endeavored to settle and compromise the cases. Col. Campbell represented the defendant in all the cases. The Scott, Harper, Rosser, Tetro, and other cases, and all of them except those of Harper and Tetro, had been settled by Campbell and the witness. Witness and Campbell also had endeavored to compromise the Harper and Tetro cases for defendant, but without success." In view of all these facts we are of the opinion that there was evidence from which the jury might fairly find that Col. Campbell had power to make the compromise, and although there was evidence tending to show to the contrary, it was not error to refuse the instruction asked.

Appellant asked another, a charge which the court refused, and that was: "There being no evidence nor pleadings before you that plaintiff was bound by the contract sued on, nor that he agreed to be bound by it, there was therefore a want of mutuality in the contract, and defendant is not bound by it." Reciprocal promises, made at the same time, and in relation to an agreement furnished, the one for the other, consideration to support a contract, and, if the appellee was relying on such a consideration to sustain the contract, he would fail, for there is no pretense that he promised to render any services whatever for the appellant. On the contrary, his petition shows that it was optional with himself whether he served the appellant. The contract alleged, however, does not rest on such a consideration. The asserted...

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