Meyer v. John W. Corley Publishing & Promotion Co.

• Citation: 162 S.W. 273,179 Mo. App. 695
• Parties: MEYER et al. v. JOHN W. CORLEY PUBLISHING & PROMOTION CO. et al.
• Decision Date: 31 December 1913
• Court: Missouri Court of Appeals

162 S.W. 273

179 Mo. App. 695

MEYER et al. v. JOHN W. CORLEY PUBLISHING & PROMOTION CO. et al.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. PRINCIPAL AND AGENT (§ 160½) — CONTRACT BY AGENT—VALIDITY—FRAUD UPON PRINCIPAL.

A principal may avoid a contract, made by his agent with a third person so as to work a fraud upon the principal, as by secretly paying the agent a commission for making the contract, though the third person cannot repudiate the contract, if the principal chooses to ratify it.

2. PRINCIPAL AND AGENT (§ 160½) — CONTRACT BY AGENT—VALIDITY—FRAUD UPON PRINCIPAL.

Defendant was not bound by a contract by its agent for hiring livery rigs, if the agent had a secret understanding with the liveryman by which he received commissions from the amount ostensibly paid to the liveryman for the rigs; such agreement being a fraud upon defendant.

3. JUSTICES OF THE PEACE (§ 150)—ACTION—PLEADING ILLEGALITY.

Where an action on a contract made for defendant by its agent was begun injustice's court, so that no formal pleadings were required from defendant, defendant could rely upon the illegality of the contract, as being collusive between its agent and plaintiff, without pleading such illegality, even for the first time in the circuit court on appeal, where it appeared from plaintiff's evidence.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Otto Meyer and others against the John W. Corley Publishing & Promotion Company and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Lehmann & Lehmann, of St. Louis, for appellant John W. Corley Publishing & Promotion Co. Chas M. Polk, of St. Louis, for appellant Publishers George Knapp & Co. Hiram N. Moore, of St. Louis, for respondents.

REYNOLDS, P. J.

Plaintiffs, a partnership composed of Otto Meyer and James Helm, commenced their action before a justice of the peace of the city of St. Louis against John W. Corley Publishing & Promotion Company, a corporation, hereafter referred to as the Corley Company, and Publishers George Knapp & Company, a corporation, the latter publishers of a newspaper called the St. Louis Republic, this defendant hereafter referred to as the Republic. It is set out in the statement filed before the justice that plaintiff "for hire let to defendants one certain bay horse of the value of $200, which was to be returned on the evening of said day and that defendants have failed and refused to so return the same, although demanded so to do." Judgment is asked for $200 and costs. Judgment went against both defendants for the amount claimed, from which judgment they appealed to the circuit court, where on a trial anew before the court and a jury, defendants, as before the justice, interposing no written pleading, judgment went against both defendants. Interposing motions for new trial and excepting to the action of the court in overruling them, defendants have duly perfected their appeal to this court.

It appears that the Republic entered into a contract with the Corley Company, by which it authorized the latter to canvass for subscriptions for its daily and Sunday issues in St. Louis and vicinity, authorizing the Corley Company to offer a lady's or gentleman's watch as a premium in connection with all subscriptions taken by responsible parties who will contract to take the daily and Sunday Republic for a period of 18 months, such subscribers to pay $1.50 on delivery of the watch and 80 cents per month thereafter for 18 consecutive months. One of the conditions named in this contract was that the Corley Company was to organize and conduct the entire canvass, paying all the expenses thereof, including the manager, solicitors, deliverymen and delivering the premiums to subscribers. After this contract was entered into the Corley Company commenced the work of canvassing for subscribers, etc., doing the canvassing by means of agents. It appears that the Corley Company placed this business of canvassing in charge of a man named Beck; at least Beck appears to be the one who had charge of hiring the teams for the work. Beck, representing to plaintiffs that he would require from four to five teams a day, made an arrangement to hire the teams needed in this work from plaintiff, at the agreed price of $2.50 per day for each team. It was agreed that Beck would notify plaintiffs at their livery stable, either by going there in person or by telephone, of the number of horses and buggies desired on a given day, the teams to be delivered on the street in front of or along the side of the Republic office at Seventh and Olive streets, in St. Louis. One of the partners, Mr. Helm, asked Beck for whom he was hiring these teams. Beck told him that it was for the St. Louis Republic; that he was securing subscriptions for that paper. According to the arrangement horses and buggies were delivered from time to time in front of or along the side of the office of the Republic in the morning and would be returned to plaintiffs about 6 o'clock in the evening. The teams were delivered through men or boys employed by respondents. The bills for the teams were made out to the Republic but were delivered to and paid by Beck at the Republic office, except on one occasion when they appear to have been paid at the office of the Corley Company. It was the custom that when the employés of the livery stable drove the teams to Seventh and Olive, they hitched the horses and went up into a room or office of the Republic Building, marked "Circulation Department," and told whoever they found there that the teams were ready. That was done on all occasions with practically few exceptions. One exception was on May 27, 1911. On that day, however, plaintiffs, in usual course and under orders from some one at the Republic office, sent out a horse and buggy and as usual placed it on Seventh street in front of the Republic office. It does not appear that the driver, who on this occasion took the rig to the usual place, notified any one in the Republic office that it was there. He drove it up, hitched it as usual and left. The next known of this rig was that night when the horse was found lying dead near a drinking trough in one of the parks of the city. There was testimony to the effect that the horse and buggy had been driven there by two young men, apparently 18 or 20 years of age, and the persons who saw it when at the trough noticed that the horse was covered with lather, was heaving, and had every appearance of having been overdriven. No one identified the young men as having any connection with either of the defendants; neither of them, however, corresponded in appearance to Beck, who was a man of about 35 years of age. Beck left the city some time after the death of the horse, and was not produced as a witness in this case. There was testimony to the effect that the horse was worth $200, possibly more.

During the cross-examination of one of the plaintiffs, Mr. Helm, it developed that he was the one who had made the arrangement with Beck for hiring these teams; that the price to be paid for them by the Republic was $2.50 a day but that plaintiffs had made an arrangement with Beck whereby they were to give and did give Beck 25 cents of this $2.50 on each team. That, said the witness, was a private arrangement between himself and Beck. His firm had charged up the livery in the bills rendered to the Republic at $2.50 a day. Beck would send up the money and pay plaintiffs or come up and pay it, and his commission would be paid by plaintiffs, or he would send up and get the money and...