Handlan v. Miller

• Decision Date: 02 November 1909
• Citation: 122 S.W. 751,143 Mo. App. 101
• Parties: HANDLAN v. MILLER.
• Court: Missouri Court of Appeals

122 S.W. 751

143 Mo. App. 101

HANDLAN v. MILLER.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

Rehearing Denied November 16, 1909.

1. BROKERS (§ 8)—EVIDENCE AS TO AGENCY.

Evidence, in an action by plaintiff to recover one-half of the total amount of commission received by defendant for negotiating the the sale of steel rails, held sufficient to sustain a verdict for plaintiff.

2. PLEADING (§ 378)—ISSUES—ANSWER—GENERAL DENIAL.

An answer containing a general denial only puts in issue all the affirmations of the petition to which it refers.

3. PRINCIPAL AND AGENT (§ 22)—PROOF OF AGENCY.

Agency cannot be established by statements of the agent to third parties.

4. BROKERS (§ 86)—EVIDENCE OF AGENCY.

Evidence, in an action by plaintiff to recover of defendant one-half of the amount of a commission received by defendant for making sale of a quantity of steel rails, held to sustain a finding by the jury that there was an agreement between the parties to divide commissions.

5. BROKERS (§ 86)—EVIDENCE OF RELATION— QUESTION OF FACT.

Evidence, in an action by plaintiff to recover of defendant one-half of the commission received by defendant for making sale of a quantity of steel rails, held to sustain a finding that plaintiff, who was president of a corporation, acted in the particular transaction for himself.

6. TRIAL (§ 237)—INSTRUCTIONS.

An instruction, on the preponderance of evidence, that plaintiff was required to establish his case by a preponderance of the evidence, that if the evidence was evenly balanced, and the jury were in doubt as to its preponderance, or if it favored the defendant, their verdict should be for the defendant, sufficiently covered the subject.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Alexander H. Handlan against Joseph G. Miller. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit brought by plaintiff, Handlan, against the defendant, Miller. The petition declares on an alleged contract to the effect that, if plaintiff would furnish defendant with information which would lead to the sale by or through defendant of steel rails and angle bars, defendant would divide with plaintiff equally whatever commission defendant made through such sale. Averring that plaintiff gave the information, and that defendant made the sale and had been paid a commission of $1,587.44 thereon, plaintiff sues for one-half thereof, averring demand and refusal to pay any part. The answer was a general denial. Trial before a court and jury.

There was testimony to the effect that plaintiff was connected with and an officer of a company known as the "Handlan-Buck Manufacturing Company," he being the president thereof, and while defendant's testimony was to the effect that plaintiff was not acting in this matter for himself, but for his corporation, and had so been understood by the defendant, plaintiff's testimony is to the effect that in the transaction involved he was acting for himself, and not for his corporation. There was testimony to the effect that plaintiff had sent an agent to the office of defendant to see whether an arrangement looking to a division of commissions on sales, made to any party whose name would be given to defendant's representative by plaintiff, could be made. Defendant himself was absent from the office at the time. There is no pretense of testimony that the arrangement was made with defendant direct, but whatever arrangement was made was made with a Mr. Irwin, a salesman for the defendant. There is testimony to the effect: That plaintiff's agent went to the office of defendant and stated the general object of his call to the man who was in charge of it. This man referred him to Mr. Irwin as the proper person to see about the matter in the absence of defendant. That plaintiff's agent or messenger saw Mr. Irwin there in defendant's place of business, and, telling him generally what he had come for, asked him to call on him and take up the matter with Mr. Handlan. That Irwin, accordingly, went to the office of the Handlan-Buck Manufacturing Company, and, seeing the agent who had before called on him, was referred by him to Mr. Handlan, who was sitting in the office, and that Irwin told him he had come there to take up the matter concerning which he had been approached, told Handlan that his (Handlan's) agent, Mr. Roubidoux, had referred him to him (Handlan) to figure on some rails with him that Handlan had an inquiry or customer for, and that Irwin said that if they—that is, defendant's firm— were not dealing with the same party, or did not have an inquiry from the same party, they would divide their commission with him (Handlan). That Handlan asked him if he would divide his commissions on these rails, provided they were not bidding on them, and he said they certainly would. Whereupon Handlan told Irwin what road it was that wanted the rails, and Irwin told Handlan that they—that is, defendant's firm —were not bidding with that railroad on these rails. The testimony on part of plaintiff further tended to show that, after the name of the party to whom a sale was ultimately made was given to defendant's agent by the plaintiff, the sale was made to that party by defendant, plaintiff co-operating, and that the commission received thereon by defendant was $1,587.44; one-half of which amount, $793.72, being claimed as plaintiff's share of the commission. The defendant himself and his agent, Irwin, were examined as witnesses for plaintiff, and while the witness Irwin gave testimony tending to show that he had held himself out as agent for defendant to plaintiff, and had acted for defendant in the matter, and had cards printed on which he described himself as "manager," defendant himself testified that Irwin had no such authority, had not told him of any arrangement as to commissions being made on his behalf with plaintiff, and that he (defendant) supposed that he was dealing in the transaction with plaintiff's corporation, and not with plaintiff as an individual. It was in evidence, however, that Irwin had authority to solicit for defendant, was in charge of his business when defendant was absent, and was interested in commissions earned in Miller's business, being on a guaranteed salary. Defendant himself had no part in this transaction, so far as making any arrangement with plaintiff was concerned; that all being done by Irwin. He admitted, however, that Irwin had called on Handlan with his knowledge and consent, to take up the matter with Handlan, but testified that, while Irwin had told him of his arrangement with Handlan, he had not told him of the part relating to a division of the commission.

The only evidence introduced on behalf of defendant, apart from what was developed in cross-examination of defendant and Irwin, who were placed on the stand by plaintiff, consisted of correspondence concerning the matter of the sale of the material to the customer designated by plaintiff. None of the letters relate or refer to the question of commissions. It all appears to have been on the letter heads of the corporation when written to defendant, and to have been signed in the name of the corporation, and to have been on the letter heads of the corporation,...