Homan v. Brooklyn Life Ins. Co.
| Decision Date | 25 March 1879 |
| Parties | AUGUST HOMAN, Respondent, v. BROOKLYN LIFE INSURANCE COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
The employment of a subagent, and the principal's knowledge thereof and his acceptance of the services rendered by such subagent as beneficial, does not prove that the principal contracted to pay for such services, or a ratification of an employment of the subagent to be paid by the principal.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.
FORD SMITH, for appellant: The burden rested on respondent to prove, not only the contract as alleged, but also the authority of the agent, with whom he claimed to have made it, to make the contract on behalf of appellant.-- Bank v. McKnight, 2 Mo. 42; Swearingen v. Knox, 10 Mo. 31; Sone v. Palmer, 28 Mo. 539; First National Bank v. Hogan, 46 Mo. 472; Wahrendorf v. Whitaker, 1 Mo. 205; Cravens v. Gillilan, 63 Mo. 28; Boogher v. Insurance Co., 6 Mo. App. 592.
B. D. LEE, for respondent: The respondent's employment was ratified by the appellant.--Story on Ag. 126, 135; Story on Sales, sect. 71; Smith on Con. 245; Pars. on Con. 41.
This is an action to recover pay for a month's services alleged to have been rendered by the plaintiff as a solicitor of insurance, for the month of May, 1877. That services were rendered was not denied; but the issue on which the case turns is whether the defendant is bound to pay the sum here claimed, or whether the obligation to pay rests upon one Wilson, who was an agent of the defendant, and who, as the defendant contends, hired the plaintiff on his (Wilson's) own account to work for the defendant. The evidence is voluminous, and it would require too much space to detail it. It is sufficient to say that Wilson was defendant's agent at St. Louis for the purpose, as his written contract showed, of receiving applications for insurance, and for collecting and paying over premiums, with authority to appoint subordinate agents to aid him in the business of his agency, for whom he was to be responsible; the company, however, by the contract, not being liable for pay or commissions of the subordinates. Wilson testified to the conclusion that he did not hire the plaintiff on his own (Wilson's) account; but it appears that both the plaintiff and Wilson understood that the defendant's obligation to pay the plaintiff for services would depend on whether some of the officers of the company would agree to do so, who were, when the plaintiff was told by Wilson to go to work, expected to arrive at St. Louis. The testimony as to any such agreement upon the part of these officers, the secretary of the company and a Mr. Taylor, is very unsatisfactory; but we cannot say that the point made by the defendant upon the demurrer to the evidence is well taken. Unsatisfactory as testimony must be which aims to prove an agreement on defendant's part by such indefinite expressions as those attributed to Cole, the secretary, by the plaintiff, some of those expressions do tend to show, not merely a recognition on Cole's part that the plaintiff was acting for the company, but that he could look to the company for his pay. The defendant contends that Cole and Taylor recognized the plaintiff only as an employee of Wilson, working indeed in the business of the company, but to be paid by Wilson, who under his contract could employ agents, paying for their services himself; and certainly the contemporaneous conduct of Wilson, as described by himself, as well as other parts of the plaintiff's evidence, tends strongly to show that Wilson hired the plaintiff and was to pay him. But, as stated, there was some evidence in support of the plaintiff's theory, and the question was for the jury.
It is, however, urged by the defendant that the plaintiff made out no case, as there was no authority shown on the part of Cole, the secretary, to employ the plaintiff for the company. Undoubtedly the plaintiff was bound to show such authority by evidence, as he was bound to supply any other link in the chain which constituted his case. But the company...
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