Fanning v. Cobb

• Decision Date: 09 February 1886
• Parties: J. A. FANNING, Appellant, v. W. H. COBB, Respondent.
• Court: Missouri Court of Appeals

20 Mo.App. 577

J. A. FANNING, Appellant,

v.W. H. COBB, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

I. C. TERRY, for the appellant: “The plaintiff's instructions, numbers eleven and twelve, were proper,” and contained sound legal propositions. Story, Agen., sects. 36, 80; Rice v. Groffmann, 56 Mo. 434; Cupples v. Whelan, 61 Mo. 583; De Baun v. Atchison, 14 Mo. 543. “The defendant's instruction number five was under the evidence misleading and restrictive, and prevented the jury from considering all or any of the acts of the defendant which induced or led the plaintiff into making the contract with Warner as the agent of defendant.” Sigerson v. Pomeroy, 13 Mo. 620; Clark v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 240; Turner v. Loler, 34 Mo. 461; Raysdon v. Trumbo, 52 Mo. 35; Iron Mt. Bank v. Murdock, 62 Mo. 70. Instruction number five given for the defendant, was inconsistent with, and contradictory to, instruction number two given for the plaintiff. The State v. Nensot, 2 Mo. App. 472; Goetz v. Railroad, 50 Mo. 472; Singer Co. v. Hudson, 4 Mo. App. 145.

A. M. SULLIVAN, for the respondent: The court did not err in refusing the plaintiff's instructions numbers eleven and twelve. Raysdon v. Trumbo, 52 Mo. 35; Budd v. Hoffheimer, 52 Mo. 297; Sawyer v. Railroad, 37 Mo. 240. Because the question of agency or authority is itself a question of fact, not of law. Middleton v. Railroad, 62 Mo. 579; Robinson v. Walton, 58 Mo. 380.

THOMPSON, J., delivered the opinion of the court.

This was an action to recover compensation for filling a vacant lot in the city of St. Louis, and to enforce a mechanic's lien against the same. The answer was a general denial.

On the trial of the cause, the following evidence was adduced, tending to sustain the allegations in the plaintiff's petition: That the plaintiff did the work, as alleged in the petition, under an agreement made with one E. S. Warner, a real estate agent doing business in the city of St. Louis, in whose office the defendant had desk room, and transacted business. That the plaintiff made the contract for the filling with E. S. Warner, who represented himself to the plaintiff as the agent of the defendant Cobb. That the defendant Cobb, prior to the date when the work was undertaken, had caused the lot to be cross-sectioned by a civil engineer, with a view to having it filled. That the defendant Cobb, through E. S. Warner, had taken bids from different persons in reference to the filling of said lot, and that their bids were had but a short time previous to the time when the work was let to the plaintiff. That before the plaintiff entered upon the work, he and the defendant Cobb, and said Warner, went to Warner's office, and conferred together in reference to filling the lot, said Warner acting and representing himself as the agent of the defendant. That shortly after said conference, Warner notified the plaintiff that he could go on with the work, and on such notification the plaintiff did proceed to fill said lot as alleged. That Warner represented to other persons that Cobb was having the lot filled. That while the plaintiff was at work filling said lot, the defendant Cobb saw the plaintiff at said work upon his lot, filling the same, but the defendant did not, when he saw the plaintiff at said work, or at any time, direct the plaintiff to discontinue the work. That the amount alleged to be due in the petition, had, since the filing of the lien upon the lot, been reduced one hundred and fifty dollars, leaving a balance of five hundred dollars. That a mechanic's lien was filed upon the lot referred to in the petition, in due form and within four months after the work was finished; no objection being made to the lien at trial, as to form or time of filing. That the defendant was in possession and ownership of the lot when the work was contracted to be done, and remained so until the work was finished, and at the date of filing this suit was in possession and ownership of the same.

The plaintiff offered testimony tending to support the facts alleged in his petition.

On the part of the defendant, evidence tending to prove the facts set up as a defence in his answer, and to contradict the plaintiff's evidence, was offered, and, among others, offered the following facts, to-wit:

That the defendant Cobb never authorized E. S. Warner to contract with the plaintiff for filling the lot described in the petition. That while the said lot was being filled the defendant Cobb sold the same to said Warner, but never gave said Warner any writing to that effect, nor did he give said Warner possession, or receive from him any money on account of said sale. That Warner informed the plaintiff that he, Warner, had pur chased said lot. Warner (the person mentioned in instruction number three), testified as a witness, and as such stated that he never was agent for the defendant in the matters in question, or any of them.

On this state of facts the plaintiff offered the following instruction, which was given:

“2. If the jury believe from the evidence that defendant Cobb, by one E. S. Warner, as his agent, entered into a contract with plaintiff by which he agreed to pay the plaintiff the sum of eight hundred dollars as a consideration for filling his lot on Lindell avenue, described in the petition, and if they further believe from the evidence that plaintiff did, in pursuance of said contract, fill said lot as agreed, and that he has not yet been paid for said filling, they will find a verdict for plaintiff for such sum as may be still due on account thereof, with interest from date of instituting this suit, viz.: the seventeenth day of September, 1884, at the rate of six per cent. per annum.”

The plaintiff also offered the following instructions, which the court refused:

“11. If the jury believe from the evidence that defendant Cobb permitted the plaintiff to work upon and fill the lot owned by him on Lindell avenue, under an agreement with, or at the request of one E. S. Warner, who was pretending to act for defendant, as his agent, in making said agreement or request, and did stand by and allow plaintiff to do said filling, and silently acquiesce therein, and not stop plaintiff from proceeding with such work, they may presume that said Warner, so pretending to act as the agent of Cobb, was his agent, and if they find that said agent contracted with plaintiff for the filling of said lot for the sum of eight hundred dollars, and that plaintiff did fill said lot according to said contract, they will find for plaintiff for such sum as may still be due on account of said contract, with interest at the rate of six per cent. thereon, from the date of filing this suit, even though said...