McDearmott v. Sedgwick
| Decision Date | 22 June 1897 |
| Parties | McDearmott v. Sedgwick et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. C. L. Dobson, Judge.
Affirmed.
L. H Waters and Lathrop, Morrow, Fox & Moore for appellants.
(1) The allegation of agency in plaintiff's petition is not supported by the evidence. Tyler v. Parr, 52 Mo 249; Gelatt v. Ridge, 117 Mo. 553; Egger v Nesbitt, 122 Mo. 667. (2) The proof failing to conform to the allegations in the petition, plaintiff can not recover. Rutledge v. Railroad, 110 Mo. 312; Williams v. Railroad, 112 Mo. 463; Halpin v. Manny, 33 Mo.App. 388. (3) The services for which plaintiff seeks to recover were illegal, immoral, dishonest, and corrupt. They were not only so in themselves, but they embraced the debauchment by plaintiff of the honesty of others. They were in fraud of the rights of plaintiff's employer. For such services there can be no recovery. Sumner v. Summers, 54 Mo. 340; Parsons v. Randolph, 21 Mo.App. 353; Sprague v. Rooney, 104 Mo. 349; Chapman v. Currie, 51 Mo.App. 40; Davenport v. Hulme, 32 N.Y.S. 803; Lum v. Clark, 57 N.W. 662; Marshall v. Railroad, 16 How. 314; City of Findlay v. Pertz, 66 F. 427; Spinks v. Davis, 32 Miss. 152; Rice v. Wood, 113 Mass. 133; Byrd v. Hughes, 84 Ill. 174; Attaway v. Bank, 93 Mo. 485; Green v. Corrigan, 87 Mo. 359; Ralston v. Turpin, 129 U.S. 663; Kribben v. Haycraft, 26 Mo. 396; McDonald v. Haughton, 70 N.C. 393; Everett v. Searle, 71 Pa. St. 256. (4) Plaintiff's services were a fraud upon the public. That he should receive compensation for them is against public policy. Woodstock Iron Co. v. Extension Co., 129 U.S. 643; Fuller v. Dame, 18 Pick. 472. (5) The court's instructions to the jury allowed them to assume as established certain facts that were in controversy. This is reversible error. Fullerton v. Fordyce, 121 Mo. 1. (6) The court practically refused to submit defendant's case to the jury at all by refusing to give instructions numbered 6, 7, 8, and 10. There was evidence upon which to base each one of them, and the refusal to give them, therefore, constitutes reversible error. Raysdon v. Trumbo, 52 Mo. 35; Porter v. Harrison, 52 Mo. 524; Budd v. Hoffheimer, 52 Mo. 297.
C. O. Tichenor and Teasdale, Ingraham & Cowherd for respondent.
(1) The question submitted to the jury by both sides was, "did plaintiff sell certain ties for defendants, and did they agree to pay him a certain price for such services?" The jury found in the affirmative. There was evidence tending to support the issues contended for by respondent. It was therefore proper to submit the case to the jury. Groll v. Tower, 85 Mo. 249. (2) The instructions covered the issues fully and fairly, and the court was on that ground alone justified in refusing appellants' instructions. Burdict v. Railroad, 123 Mo. 221; Talbot v. Mearns, 21 Mo. 427. (3) Appellants submitted the case on the same theory as respondent; they can not now complain, nor will they be permitted to change their defense after getting into this court. Tetherow v. Railroad, 98 Mo. 74; Walker v. Owen, 79 Mo. 563; Whetstone v. Shaw, 70 Mo. 575; McKinney v. Guhman, 38 Mo.App. 344. (4) There was no illegality in the contract made by respondent with appellants, and if it was a fact that respondent, in carrying it out, violated some law, that would not bar his recovery. Armstrong v. Bank, 133 U.S. 469; Kinsman v. Parkhurst, 18 How. 293; Hipple v. Rice, 28 Pa. St. 412; Swan v. Scott, 11 Serg. & R. 155; Smith v. Dubose, 78 Ga. 413; Floyd v. Patterson, 77 Tex. 202; Gay v. Parpart, 106 U.S. 679; Railroad v. Tygard, 84 Mo. 269. (5) In the condition of the record it can not be said, as a matter of law, the respondent did anything contrary to public policy; at most it was a question for the jury; different minds might arrive at different conclusions from the record. Church v. Railroad, 119 Mo. 203. (6) Appellants' refused instructions were objectionable because they were comments on the evidence; because they singled out certain disputed testimony and gave undue prominence to it. Spohn v. Railroad, 87 Mo. 74; McFadin v. Catron, 120 Mo. 252; and because they are misleading. Clark v. Hammerle, 27 Mo. 55; Griffith v. Conway, 45 Mo.App. 574; Maack v. Schneider, 57 Mo.App. 434. (7) Appellants' criticism of respondent's first and second instructions is without merit. They clearly directed the jury to the evidence; the jury could not have assumed that the court meant to say that the evidence did actually show an agreement on the part of the defendants to pay the commission or any part of it. State v. Miller, 111 Mo. 542; Buck v. Railroad, 108 Mo. 188.
This is a suit on the recovery of one half cent per tie for seven hundred and sixty-three thousand, one hundred and ninety-three ties alleged to have been sold by plaintiff for defendants as their agent.
The petition was in two counts, the first on a quantum meruit for the value of the services rendered defendants by plaintiff in procuring the sale of the ties, and the second on a contract for the same services. The answer to each count was a general denial. The first count was dismissed before submission to a jury. On the second count there was a verdict and judgment for the amount claimed. From that judgment defendants have appealed.
The substantial averment of the second count of the petition is as follows: "That during the years 1891, 1892 and 1893, defendants employed plaintiff as their agent to sell for them railroad ties; that during said time plaintiff sold for defendants 763,193 ties, to the Union Pacific Railway Co.; that defendants agreed to pay to plaintiff a commission for said sale at the rate of one half cent per tie."
It appears from the evidence that the Union Pacific Railway Company used several hundred thousand railroad ties annually. Purchases were made in the fall of the year of a sufficient number to supply its needs through the following year. These purchases were made by means of competitive bidding. The defendants as partners were railroad tie contractors, and in the year 1891 had on hand, for sale, five or six hundred thousand ties, which they were very anxious to dispose of. They had previously made several unsuccessful efforts to sell to said railroad company. In 1891 plaintiff was, or had been, in the employ of the said railway company as traveling freight agent. He knew all the methods of the railway company in receiving and accepting bids, making contracts for ties, and in inspecting them when delivered. He had managed to secure some contracts for other contractors. During the winter of 1891 plaintiff and defendant met, and according to the testimony of plaintiff, entered into an agreement whereby he was employed to undertake to secure for them a contract to furnish the railway company with railroad ties at the letting which would take place in the fall of that year. According to the agreement as detailed by him he was to receive as commission one cent per tie if he secured a contract for the sale of one hundred thousand ties and the same rate for all ties sold in excess of that quantity. The evidence tends to prove that under this agreement plaintiff attended the letting of contracts in the fall of that year and performed some services in determining the proper bid to make, and after making a bid, in securing an acceptance of it. Under this letting defendants obtained a contract for the sale of over one hundred thousand ties. According to plaintiff's testimony, a like contract was made for the years 1892 and 1893, except that it was then agreed that the commission of those and the previous year should be reduced to one half cent per tie. Under these several agreements plaintiff claims to have sold to said railroad company for defendants, seven hundred and sixty-three thousand, one hundred and ninety-three ties and for which they paid him at different times $ 658. For the balance of the commission plaintiff prosecutes this suit.
Defendants deny the employment of plaintiff, but testify that he merely volunteered his services to put in such bids as they might conclude to make and that was substantially all that he had done, and that the payments made to him were gratuitous. The evidence was not conclusive that during the time those sales were made, plaintiff was in the employ of the railroad company, but tends to prove that fact.
At the trial plaintiff testified to facts, in respect to the services rendered, from which the inference could be drawn that in order to enable him to underbid other contractors, he had, by the corruption and bribery of the employees of the railway company, obtained knowledge of all other bids before those of defendants were deposited. Indeed the testimony of plaintiff, and letters written by him to defendants during the time of the alleged employment, establish very conclusively that such corrupt methods were employed with the knowledge and approval of defendants, and all the evidence taken together, tends to prove that in the employment of plaintiff, both he and defendants had in view the use of such means, and that obtaining such information in that manner was the principal consideration of the employment. At the conclusion of the evidence, on request of plaintiff the court instructed the jury, in effect, that if plaintiff was employed by defendants to sell ties to the railway company, and in pursuance of such employment he did sell to it the ties in question, then plaintiff is entitled to recover.
Defendants asked, and the court refused to give, an instruction in the nature of a demurrer to the evidence. The court then instructed the jury, at the request...
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