Hackney v. Fairbanks, Morse & Co.

• Decision Date: 22 August 1940
• Docket Number: No. 6173.,6173.
• Citation: 143 S.W.2d 457
• Court: Missouri Court of Appeals
• Parties: HACKNEY v. FAIRBANKS, MORSE & CO.

143 S.W.2d 457

HACKNEY v. FAIRBANKS, MORSE & CO.

No. 6173.

Springfield Court of Appeals. Missouri.

August 22, 1940.

Rehearing Denied September 18, 1940.

Appeal from Circuit Court, Dade County; Thomas W. Martin, Judge.

"Not to be published in State Reports."

Action by Sam Hackney, Jr., against Fairbanks, Morse & Co. to recover commissions for services allegedly rendered by the plaintiff to the defendant in connection with the sale of machinery to the City of Lamar. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed outright, and cause remanded, with directions to enter a judgment discharging the defendant.

Poppenhusen, Johnston, Thompson & Raymond, of Chicago, Ill., Bowersock, Fizzell & Rhodes, of Kansas City, Combs & Combs, of Lamar, and Neale, Newman, Neale & Freeman, of Springfield, for appellant.

E. L. Moore, of Lamar, for respondent.

TATLOW, Presiding Judge.

The parties will be referred to in this opinion as plaintiff and defendant.

The plaintiff, Sam Hackney, Jr., alleges that he was employed to assist the defendant in selling machinery and equipment for use by the City of Lamar in its water and electric plant. The petition alleges, among other things, "that this plaintiff, at the special instance and request of the defendant, undertook to aid and assist the defendant in selling such engines and equipment and in getting such contract with the city, and that pursuant to such employment he had various consultations and contacts with the mayor and members of the board of aldermen and other officers of said city, in the premises, endeavoring to sell the city defendant's said products and to procure such contract for defendant", etc. It then alleges that the defendant sold to the city engines and other machinery, for the sum of $186,197. It then alleges: "Plaintiff further says that the services so rendered by him as aforesaid were valuable to defendant and were and are reasonably worth five per cent of the amount of said contract, or $9,300.00."

Plaintiff prayed for judgment in said amount of $9,300.

The defendant's answer is a general denial and contains also the following: "Further answering, the defendant denies that it ever employed plaintiff to aid in selling the engines and equipment mentioned in plaintiff's petition; denies that the sale of the said engines and equipment to the City of Lamar was induced in whole or in part by any aid or assistance of the plaintiff; and denies each and every other allegation in plaintiff's petition contained."

The plaintiff filed a reply to defendant's answer, which was a general denial. On the issues thus made the case was tried on June 20, 1939, resulting in a verdict for plaintiff, signed by ten of the jurors, for $3,250.

The defendant makes seven assignments of error, in separate paragraphs. The first and second assignments of error are identical with the exception that the first relates to a request for a directed verdict at the close of plaintiff's case, and the second relates to a request for a directed verdict at the close of all of the evidence in the case. The second assignment of error is as follows:

"The court erred in refusing to give to the jury at the close of the whole case appellant's requested Instruction No. Y in the nature of a demurrer to the evidence because:

"1. Respondent failed to show by any evidence that W. S. Barnes, salesman for appellant, had any authority, express or implied, to employ respondent on behalf of appellant and to promise on behalf of appellant to pay respondent for his services.

"2. Respondent failed to show by any evidence that appellant employed respondent and promised to pay respondent for his services."

If this assignment is sustained it will be unnecessary for us to consider the other assignments of error.

The plaintiff called W. S. Barnes as a witness on his behalf. His testimony with reference to his duties and authority as defendant's agent is as follows:

"* * *. My occupation is salesman of machinery, including Diesel engines, equipment and things of that kind for Fairbanks-Morse. My place of business is at 1308 Liberty, Kansas City, which is the general Fairbanks-Morse building there. My offices are not separate from the building. I have a desk in the front part on the ground floor. My territory as salesman of machinery and equipment is the western part of Missouri and about one-third of Kansas, the north and east part of Kansas, just those two states. Barton County, Missouri, is in my territory. Fairbanks, Morse & Company have a branch house at St. Louis, Missouri. Headquarters are in Chicago. Kansas City and Saint Louis are both branch houses. Each of them has salesmen covering certain territory.

"Q. Are you the chief salesman in that territory from Kansas City? A. No, you couldn't characterize it as chief salesman; I could explain to you. We have territory salesmen who have a certain limited territory over which they travel constantly. They sell the smaller equipment — scales, things of that kind. Then we have other salesmen who handle larger machinery; that is Diesel engines and electrical machinery; that is my job, over this territory.

"Q. Also including Dade County? A. No, no, don't have Dade County.

"Q. And that is, these salesmen in that territory are under you, really? A. No, they are not; they are distinctly separate.

"Q. Is there any other salesman besides yourself covering Barton County during that period of time? A. Yes.

"Q. Who is he? A. At the present time it is Mr. Quentin.

"Q. And how long has he been on? A. Year or so, and ahead of him was Mr. George; they were territory salesmen.

"Q. You mean they travel about and you stay in the office more? A. No, they are not overlapping at all; they are what is known as territory salesmen; they have certain limited territory over which they travel constantly, and they sell what is known as the dealer line; in other words, the machinery which is sold through the dealers.

"Q. That is, smaller equipment? A. Yes, scales and small engines, things like that.

"Q. And you have charge of the heavy equipment? A. Yes, special machinery.

"The other salesmen in the territory are not under me. They are distinctly separate.

"I have been employed by Fairbanks, Morse & Company about 39 years in Kansas City. I have had charge of the sale of the heavy machinery I have spoken of since 1911."

Mr. Barnes testified that he continued to try to sell engines to Lamar, Missouri, until 1938, the time the machinery was sold. During that time he worked with members of the council at Lamar, in attempting to sell Fairbanks-Morse machinery. With reference to Mr. Hackney, he said:

"* * *. I saw Mr. Hackney the latter part of that time at the Travelers Hotel in Lamar. I was in my room upstairs and when I came down, I was told by the clerk that a gentleman wanted to see me, and it was Mr. Hackney.

"He introduced himself and told me that an original plant had been put in there which was furnished by our Saint Louis house. At that time, this territory was handled by the Saint Louis house, and he told me of his connection with that installation. That conversation was not concerning this sale. In that conversation, Mr. Hackney attempted to get a contract to put in the concrete work on any new addition to the plant. He said nothing to me about employment by Fairbanks, Morse & Company. It was the first time I had ever seen him and he introduced himself to me.

"Subsequent to this, he came to my office or to the office of Fairbanks, Morse & Company in Kansas City. This was before the engines were purchased. He called up from Paola, Kansas. I happened to be in the office and he said he was going in and wanted to see me, and he did. He told me that the City of Paola, Kansas, was going to put in a light plant. I told him I knew that, that I had been figuring with them for several years. Then he came to Kansas City sometime after that. He was up there in connection with an artificial limb and he came down to the office and told me that Golden City was figuring on putting in a light plant. I told him I knew that, I had been down there. In these meetings, he mentioned nothing concerning the Lamar plant, only in just a general way, that is, offhand. He mentioned nothing concerning employment by me or concerning any compensation except for the foundation if we got the contract.

"He did not submit any statement to me, but he had a partner — when he introduced himself to me in the hotel, I asked him if he were a contractor and he told me that his partner and he had taken a sub-contract in this original installation and that his concrete man was named Yost. I told him if he wanted to figure on it to bring Yost down and he did. I told him at the hotel what the requirements of the foundation would be and told him if they wanted to bid on it to submit a written bid, which they did, that is, Yost did through Hackney. The bid was in Mr. Yost's name and I spoke to several members of the council and asked them if Yost was a reliable contractor and they showed me that he was. I told them if he was in line, it was our policy wherever possible to hire local contractors and we would give him, if he was in line, favorable consideration.

"Both Mr. Hackney and Mr. Yost were together when they submitted the bid to me. I have the bid with me. It is marked `Defendant's Exhibit 1.'

"Defendant's Exhibit 1 is the proposal from Mr. Hackney and his partner, Mr. Yost, covering the building of the foundation or the proposed foundation. At that time, the city was figuring on buying one engine. This was after Mr. Hackney had first been to the hotel and had gone and gotten his partner, Mr. Yost. They came back to the hotel together. I believe they came back the following day. The second visit he made to Kansas City was after that time, I would estimate two or three months. At that time, mention was made of this concrete addition to the plant — this bid. He just...