Haak v. Struve

• Decision Date: 07 January 1888
• Citation: 38 Kan. 326,16 P. 686
• Parties: THOMAS HAAK v. JOHN STRUVE
• Court: Kansas Supreme Court

16 P. 686

38 Kan. 326

THOMAS HAAK v. JOHN STRUVE

Supreme Court of Kansas

January 7, 1888

Error from Washington District Court.

ACTION to recover wages for work. Judgment for plaintiff Struve for $ 12.50, at the June Term, 1886. The defendant Haak brings the case here. The court below gave the following instructions:

"1. The plaintiff claims a balance due him of twelve dollars and fifty cents on an account for work in cutting wood and posts. The defendant does not dispute the correctness of the account, but claims that the work was not done for him, but for one John Keller, who, the defendant claims, had the contract to cut the wood and posts, and who employed the plaintiff to assist him in his contract.

"2. If the defendant made the contract with Keller to do the work, and Keller hired the plaintiff on his own responsibility to assist him in the work, then the defendant is not liable to the plaintiff. But if the defendant employed said Keller to work and also to oversee and direct other laborers as the agent of the defendant, then the defendant is liable to the plaintiff for whatever balance the plaintiff has shown to be due him, without regard to whether the contract of employment was made by the plaintiff with the defendant or with Keller as the defendant's agent. It is for you to determine from all the facts and circumstances shown by the evidence, what the relations of the parties were, and whether the plaintiff was in the employ of the defendant, or of Keller.

"3. The fact, if it is a fact, as shown by the evidence, that the timber cut by the plaintiff belonged to the defendant, and that the defendant received the wood and posts cut by the plaintiff, and got the benefit of them, would not render the defendant liable to the plaintiff, if the plaintiff was employed by Keller to work for Keller, and was not employed by the defendant acting for himself, or through a duly-authorized agent.

"4. You are the judges of the evidence and of the credibility of the witnesses, and you have the right, in determining what weight and credence to give to the testimony of the several witnesses, to take into consideration all the circumstances appearing upon the trial, and to give such weight to the testimony of each witness as it seems to be entitled to under all the circumstances. To entitle the plaintiff to recover he must prove the facts constituting the alleged liability of the defendant by a preponderance of the evidence.

"5. You are instructed that even though Keller was not in fact defendant Haak's agent, still if you find from the evidence that Haak has led plaintiff to believe that Keller was his agent, and that thereby plaintiff was induced to do the work claimed to have been done by him, then Haak will be bound by the acts of Keller as agent and will be liable to plaintiff for the work done.

"6. You are further instructed that if you find that plaintiff brought his action upon a contract which he claimed to have made in person with defendant Haak, and afterward and during the trial abandoned this theory and claimed to have made the contract with another than defendant, and one whom he claimed to be an agent of defendant, then such circumstances may be considered by you as affecting the good faith of plaintiff in bringing this action."

The following instruction was asked to be given by ...