Hoolan v. Bailey

• Citation: 30 Mo.App. 585
• Parties: ANDREW HOOLAN, Respondent, v. DAVID BAILEY, Appellant.
• Decision Date: 24 April 1888
• Court: Court of Appeal of Missouri (US)

30 Mo.App. 585

ANDREW HOOLAN, Respondent, v. DAVID BAILEY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

J. P VASTINE, for the appellant: Where one, at the request of another, performs beneficial services for him, unless it is agreed or is to be inferred from the circumstances that they were to be rendered without compensation, the law will imply a promise on the part of him for whom such services were rendered, to pay for them what they are reasonably worth. Dougherty v. Whitehead, 31 Mo. 255. Where services are rendered and received without any expectation of payment no claim can be preferred therefor. Morris v. Barnes Adm'r, 34 Mo. 255. The law never implies what the parties never intended, never raises a promise in such circumstances. Bank v. Aull, 80 Mo. 199. The intentions of parties which are not communicated by either to the other, form no agreement, though they may correspond. Coleman v. Roberts, 1 Mo. 97. The court below erred in not allowing proof of the custom in cases like the present.

O'NEILL RYAN, for the respondent: " The law never implies what the parties never intended; never raises a promise in such circumstances." Bank v. Aull, 80 Mo. 202; Hay, Adm'r, v. Walker, 65 Mo. 17, 19; Allen v. Bowman, 7 Mo.App. 29; Ryan v. Lynch, 9 Mo.App. 18. The intention of Bailey to charge in a certain event is not sufficient; it was not communicated to Hoolan who understood Bailey was being compensated by his regular commissions. Coleman v. Robinson, 1 Mo. 97, 101. The question of the intention of the parties is one of fact to be gathered from all the circumstances. Whaley v. Peak, 49 Mo. 80, 83; Allen's Adm'r v. College, 41 Mo. 309. And this fact the court found against Bailey, and his own testimony and written reports amply sustain this finding. If one intends to render services gratuitously he cannot afterwards make a charge therefor. Whaley v. Peak, 49 Mo. 80, 82; 2 Addison on Contracts, *1030 and cases. The testimony offered to show the value was simply cumulative and was incompetent. Brown v. Strimple, 21 Mo.App. 338.

OPINION

ROMBAUER P. J.

The plaintiff, prior to the dates herein stated, was administrator of the estate of one Carroll. Upon final settlement of the estate it was indebted to him in the sum of fifteen hundred dollars, and more, and it was agreed between himself and the heirs that he should reimburse himself out of rents to be collected from certain realty belonging to the estate, situated in St. La. The defendant, during the administration and thereafter, collected these rents as house agent, and paid the proceeds to plaintiff. It is conceded that at the date of the institution of this suit there was in the defendant's hands a sum of one hundred and seventy-five dollars, balance of rents thus collected, and that plaintiff was entitled to such balance, unless the defendant was entitled as against him to a counter-claim for that amount, owing to the services hereinafter stated. The court rendered judgment for plaintiff for one hundred and seventy-five dollars, and interest.

The complaints made on this appeal are, that the court excluded certain evidence offered by the defendant, and that the judgment is against the evidence.

It appeared in evidence that, in May, 1886, the defendant while acting as house agent for the plaintiff was instrumental in effecting a lease of the...