Handlan v. Miller
| Citation | 122 S.W. 751,143 Mo.App. 101 |
| Parties | ALEXANDER H. HANDLAN, Respondent, v. JOSEPH G. MILLER, Appellant |
| Decision Date | 02 November 1909 |
| Court | Court of Appeal of Missouri (US) |
Argued and Submitted October 8, 1909. [Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
AFFIRMED.
STATEMENT.--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, that 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 $ 1587.44 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 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 handed Handlan his card, on which Irwin was named as manager for defendant, and 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 the 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 $ 1587.44, 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 letterheads 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, and on behalf of the defendant, all of the correspondence appears to have been addressed to the corporation. Plaintiff, however, testifies that after he made the arrangement, he turned the matter of filling the contract and all attention and correspondence about it, over to his corporation, but that the arrangement or agreement he claimed to have made about division of commissions was his own private matter, in which the corporation had no interest.
The two points in controversy in the evidence were, first, as to whether an arrangement of the kind testified to had been made by an authorized representative of the defendant; second, whether the disputed arrangement was for plaintiff individually or for his corporation. It was furthermore testified by defendant, that he had never known of any arrangement being claimed as existing for a division of commissions, until some months after the close of the transaction, when he then repudiated it and denied liability to the plaintiff. Defendant asked an instruction for nonsuit which was overruled.
The court of its own motion gave the following instructions:
It also gave the usual instruction as to the number of jurors necessary to concur in a verdict. Defendant excepted to the giving of these instructions.
At the instance of defendant the court gave to the jury six instructions. The first told the jury that plaintiff was required to establish his case by a preponderance of the evidence before he could recover; that if he had not done so and the evidence was evenly balanced and the jury was in doubt as to its preponderance or if the preponderance is in favor of defendant, then the verdict should be for defendant. In the second instruction the jury were told, in effect, that before plaintiff can recover he must prove either direct authority given to the person claimed to have made the arrangement, or that, knowing of the acts of the party defendants had ratified them, or that defendant knowingly and voluntarily permitted such person to hold himself out to the world as his agent for the purpose of doing either the act in question or similar acts pertaining to the same subject-matter. By the third instruction the jury were told that even if plaintiff proved, by a preponderance of the evidence, that the relation of principal and agent existed between the defendant and Irwin on the date of the alleged transaction, the mere fact that Irwin was in the employ of defendant is not, in itself, sufficient to establish the agency, but they must believe and find from the evidence that the contract was made by Irwin and that the defendant directed or authorized him to make it, or that he had ratified and approved it after it was made, or that in making it, Irwin was acting within the apparent scope of his authority as such agent as defined by the instruction. The fourth instruction...
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