Hilton v. Soc. Newman

• Decision Date: 10 December 1878
• Citation: 6 Mo.App. 304
• Parties: THOMAS J. HILTON, Respondent, v. SOC. NEWMAN ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 304

THOMAS J. HILTON, Respondent,

v.SOC. NEWMAN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 10, 1878.

1. Where one with whom a contract was made has since died, in order to exclude the other party as a witness it must appear that the deceased was a party to the cause of action; and if deceased was acting for another in making the contract, he was not a party to the cause of action; and where there is nothing to show that he acted for himself, but the essential issue is for what principal he acted, his death does not disqualify as a witness the other party to the contract.

2. Where the chief clerk employed to attend to the general business in the office of a general agent of insurance companies made a contract for repairing a house insured in one of the companies represented by the agency, and which had been injured by fire, in the absence of any evidence of the clerk's authority to bind the agent individually, or of any assumption on his part to so bind his employer, or of ratification, or even knowledge, of the contract on the part of the agent, and where the contractor knew that the insurance company, and not the agent, was the principal party, such contract will not bind the general agent personally.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

G. G. POSEY, for appellants: The court below erred in permitting plaintiff to testify.-- Angell v. Hester, 64 Mo. 142; Stanton v. Ryan, 41 Mo. 510; Andrews v. Hand, 49 Mo. 159; Loker v. Davis, 47 Mo. 140; Amonete v. Montague, 63 Mo. 201. Newman is not personally liable to the plaintiff for the value of the work done.--Story on Ag. 291, sect. 261.

W. F. ROGERS, for respondent: The plaintiff was not disqualified as a witness.-- Stanton v. Ryan, 41 Mo. 510; Andrews v. Hand, 49 Mo. 159; Loker v. Davis, 47 Mo. 140; Amonete v. Montague, 63 Mo. 200. Under the facts in this case, Newman is personally liable for the work done.--Story on Ag. 310, sects. 263, 264; Graham v. Stamper, 2 Vt. 146; 2 Kent's Comm. 632, 633.

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

This is a suit brought before a justice of the peace upon an account, to recover for work done by the respondent in making plans and estimates, as a carpenter, for the erection of a building in place of one which had been destroyed by fire, and which was insured by insurance companies of which the present appellant, Newman, was the agent. It appeared that the respondent went to the office of the appellant with a view of making bids for the reconstruction, and there found Pritchard, originally a defendant in this case, in charge of the office, which was the one where the business of the appellant as agent for the insurance companies was transacted. The respondent asked Pritchard if he wanted any bids upon the construction of the building, and testified that Pritchard said that he did; “that if I was the lowest bidder, I should have the job in case the insurance company had the work done, and if the company paid the money, then I should have compensation for my work.” The respondent made measurements and calculations, and his bid was found to be the lowest. The companies, however, afterwards paid the loss. The respondent testified that Pritchard told respondent to make out his bill for his services in making estimates “to that office;” which the respondent did, but could never get the bill paid. It appeared that the transaction was entirely between the respondent and Pritchard, and that the former had nothing to do with Newman, who was never at the office during any interview. Newman testified that he did not know the respondent, and never promised to pay him any thing; that Pritchard was his clerk in the insurance business, but had no authority to bind him (Newman). The jury found for the respondent.

In the statement of the cause of action upon which this case was tried, Pritchard and Newman are charged as codefendants, jointly liable, the argument being that the work was done at their request. Upon the trial before the justice, Pritchard not having been served, the respondent dismissed as to him, and the trial in the court below, accordingly, was as to Newman alone. When the respondent was about to testify as to his employment by Pritchard, and the transactions between himself and Pritchard, the appellant objected, on the ground that Pritchard was dead; and it appeared that the latter had died since the bringing of the suit. It further appearing that Pritchard was in the employ of Newman, and, as was testified, his chief clerk, in general control of Newman's insurance business, the court below ruled that, notwithstanding the death of Pritchard, the respondent was a competent witness in his own behalf. The correctness of this ruling is the first question presented.

The statute provides that “no person shall be disqualified as a witness in any civil suit or proceeding, at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility; provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor,” etc. Wag. Stats. 1372. We must be governed by the words of the statute in construing it to ascertain what exceptions fall within the proviso, even if we thereby exclude cases which might seem to be within the reason which gives rise to the limitation of the general rule. Here the person...