McCormack v. Herboth
| Decision Date | 14 November 1905 |
| Parties | McCORMACK v. HERBOTH. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.
Action by Charles McCormack against Charles Herboth. From a judgment in favor of plaintiff, defendant appeals. Reversed.
John A. Gilliman and Luther E. Smith, for appellant. Stern and Haberman, for respondent.
This case originated before a justice of the peace on the following statement:
The answer was an oral denial of the plaintiff's cause of action, and on this answer the cause was tried both in the magistrate's and the circuit court. In the latter tribunal, the plaintiff obtained judgment for $150, and defendant appealed to this court.
It will be observed that the services constituting the basis of the claim are stated in the complaint or account to have consisted of estimating the fire damage to a building owned by the defendant and adjusting the fire loss on the same. It is stated that both services were rendered at the special instance and request of the defendant. The trial court followed the statement regarding the services in the instructions to the jury. In order for a verdict to be returned for the plaintiff, the jury were told that they must find plaintiff had been employed by the defendant to estimate the loss by fire to defendant's building and to adjust said loss with the insurance companies; and find, too, that plaintiff rendered both services; that is, that he both estimated, and adjusted the loss. We are particular in calling attention to this point, because an attentive study of the evidence has convinced us that the testimony adduced by plaintiff tended to prove he was employed to estimate the loss, but not that he was employed to adjust it with the companies. The reason for this conclusion can be made plain only by quoting the material portions of the testimony bearing on the alleged contract between the parties. The defendant contends, and supports the contention by his oath, that he never employed plaintiff to render either service; but, instead, employed another man named Lemburg to estimate the loss.
Plaintiff is a contractor and builder in the city of St. Louis, and has been for 28 years. Lemburg is a builder, too. The fire occurred in April, 1904. The main building damaged was owned by the defendant, but the premises had been occupied as a place of business by the American Radiator Company ever since the building was erected, and the said company had built additions to the main building, and owned those additions. The plaintiff, as contractor, constructed the house and the additions; the house for one Bonsack, who owned the premises prior to Herboth's ownership, and the additions for the American Radiator Company. The latter were built during the 8 or 10 years preceding the fire. The additions belonging to the Radiator Company, and on which it carried insurance, were damaged by the fire and said company was entitled to be reimbursed for its loss by the insurance companies. The main building belonging to the defendant, Herboth, was also damaged and he was entitled to reimbursement by the companies. As McCormack had been in the habit of making repairs for the radiator company, the manager of that company telephoned him after the fire to come to the plant and "estimate the damage." Plaintiff said that when he went to the plant he met Mr. Herboth and told the latter of his (plaintiff's) employment by the radiator company, and that as he had built the building for Bonsack and had made improvements for the tenant, he was in a better position than any one else to tell where the property of the owner, Herboth, left off and that of the tenant, the radiator company, began and it would be to Herboth's interest to employ him, too. We will quote plaintiff's testimony as to the arrangement between him and Herboth: Some gentlemen, who were in the factory at the time, representing the insurance companies, heard part of this conversation—that is to say, heard McCormack's proposal to Herboth—but did not hear the latter tell McCormack to go ahead; and as to this reply the case rests on plaintiff's own testimony. Herboth testified, like McCormack, in regard to the latter's proposition, but in regard to the answer to it, Herboth said he told McCormack that his (Herboth's) real estate agent (a man named Bersch) had already engaged some one else to come out and estimate Herboth's loss, and he would have to see about that engagement before he employed McCormack. McCormack swore Herboth then and there called Bersch by telephone, and told him not to send the other contractor to make an estimate. In point of fact the other man (Lemburg) was at the plant for the purpose of making an estimate, either before or after the conversation between McCormack and Herboth. The testimony of Herboth is that he never engaged McCormack's services, either at the time of the conversation mentioned, or subsequently, but was aware McCormack was making an estimate of the damages to Herboth's building, but supposed it was being done in behalf of the insurance companies. The latter statement looks rather improbable.
Now, the essential point, as we see the case, is this: Granting that McCormack's statement that he was told to go ahead by Herboth was true,...
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