McGinness v. Mitchell

• Decision Date: 06 April 1886
• Citation: 21 Mo.App. 493
• Parties: F. L. MCGINNESS ET AL., Respondents, v. ROBERT MITCHELL ET AL, Appellants.
• Court: Missouri Court of Appeals

21 Mo.App. 493

F. L. MCGINNESS ET AL., Respondents,

v.ROBERT MITCHELL ET AL, Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 6, 1886.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

W. C. MARSHALL, for the appellants: Agents can not delegate to third parties the powers conferred on them by their principals. Paul v. Edwards, 1 Mo. 30; Brown v. Insurance Co., 45 Mo. 221; Ess v. Truscott, 2 Mees. & W. 385; McClure v. Insurance Co., 4 Mo. App. 148. Where the power of an agent to bind the principal is conferred by a contract with a third party, and the contract prescribes the mode and manner of proceeding, the principal is not bound by any act of the agent that is not done in such mode and manner. Mechanic's Bank v. Schaumburg, 38 Mo. 228; The State v. Bank of Missouri, 45 Mo. 528; Wahrendorf v. Whitaker, 1 Mo. 205; Tate v. Evans, 7 Mo. 419; Barcus v. Hannibal Co., 26 Mo. 102; Delafield v. The State of Illinois, 26 Wend. 192. Where the power to order additional work to that called for in a contract between the principal and contractor is conferred upon an agent nominated in such contract the principal is not bound by the acts of any one else pretending to act as his agent in reference to such work. ““““ Expressio unius est exclusio alterius.” Dunlap's Paley's Agency, 175; 2 Kent (5 Ed.) 633; Brewster v. Hobart, 15 Pick. 202. The power to pay for work done by a contractor under a contract with the principal, does not constitute the person who makes the payment the general agent of the principal, nor give him authority to bind the principal by a new and direct contract in reference to work or additional work contemplated by the original contract. Mechanic's Bank v. Schaumburg, 38 Mo. 228; East Ind. Co. v. Hensley, 1 Esp. 112; Fenn v. Harrison, 3 T. R. 757; Harner v. Sharp, 44 L. J. Ch. 53; Pickering v. Busk, 15 East, 43; Snow v. Perry, 9 Pick. 542; and especially Anderson v. Volmer, 83 Mo. 403.

TAYLOR & POLLARD, for the respondents.

LEWIS, P. J., delivered the opinion of the court.

The defendants were owners of a business building on Third, between Pine and Olive streets, in the city of St. Louis, and contracted with Rude & Luke for improving the same by extensive alterations and additions. The plaintiffs became sub-contractors for the painting and glazing. A considerable quantity of the same sort of work was done by the plaintiffs outside of that embraced in the contract with Rude & Luke, and for this extra work the present suit is brought, to enforce a mechanic's lien against the property. The cause was sent to a referee, who reported in favor of the plaintiffs, with the lien prayed for. The report was approved and judgment entered accordingly for $1,347.70, with interest.

The controversy turns chiefly on the question whether the work was done under any authority from the defendants. In their behalf it is contended that the persons who ordered the work to be done were not lawfully empowered agents for that purpose, and, further, that the plaintiffs' only remedy is against Rude & Luke, the principal contractors.

It appears that Robert Mitchell, one of the defendants, was a resident of Cincinnati, Ohio, and William Mitchell, the other, resided in St. Louis, but was an invalid, and disqualified for attending to any business. Neither of them took any personal part in the management or direction of the improvements, while in progress, and neither was ever seen about the premises from the beginning to the ending of the work. William J. S. Mitchell, a son of William, and nephew of Robert Mitchell, appeared to represent the defendants in everything pertaining to the building of the work going on, and was present daily, directing, approving, or disapproving. His connection with the whole business is so clearly and succinctly presented by the referee, that we can not here show it better than by an extract from the report submitted to the court below. The referee says:

“The evidence further shows that in the making of said alterations and improvements the defendants acted through one W. J. S. Mitchell, a son of the defendant William Mitchell, and nephew of his co-defendant; that on their behalf said William J. S. Mitchell employed George I. Barnett & Son as architects and superintendents to design and draft plans and specifications for said alterations and improvements, and to superintend the carrying out of the same; and also negotiated and signed the defendants' names to the contract with Rude & Luke; that he also, on their behalf, made contracts with other persons for the doing of other minor parts of the work done under said plans; that neither of the defendants was present at the building during the whole time the work was in progress, the defendant William Mitchell, though residing in St. Louis, being unable to attend to business, and the defendant Robert Mitchell, being a resident of Ohio; that the defendants in fact intrusted to said William J. S. Mitchell, the entire management of the work of improving and altering their said building, and the employment of the persons by whom it was to be done; and that he in fact took entire charge of it and was daily at said building and giving attention to it; and that the defendants, from time to time, during its progress, approved his doings in respect thereto, by honoring checks and drafts drawn on them by him to pay the persons employed by him to do the work and furnish materials for it.

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