Owen v. Matthews
| Decision Date | 04 February 1907 |
| Citation | 100 S.W. 492,123 Mo.App. 463 |
| Parties | C. C. OWEN, Respondent, v. C. E. MATTHEWS et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.
AFFIRMED.
Frank L. Forlow and H. W. Currey for appellant.
(1) Defendants did not know that plaintiff was placing them in the hands of the special confidant of Nicholson, or that plaintiff and his friend were acting in a dual capacity. Therefore, the contract of plaintiff to receive compensation for a sale to Nicholson, is contrary to public policy, and void. Lum v. McEwen, 56 Minn. 278; Atlee v Frank, 75 Mo. 100; Summers v. Carey, 74 N.Y.S 980, 69 A.D. 428; Norman v. Roseman, 59 Mo.App. 682; Reese v. Garth, 36 Mo.App. 645; Drake v Laner, 93 A.D. 86, 86 N.Y.S. 986. (2) The issue of acquiescence on the part of Nicholson and knowledge and acquiescence on the part of the defendants was, though sharply made by the evidence, ignored in the instructions. This was error. DeSteiger v. Hollington, 17 Mo.App 382; Chapman v. Currie, 51 Mo.App. 40; Robinson v. Jarvie, 25 Mo.App. 421. (3) It is a well-established rule that fraud or misconduct on the part of the agent forfeits his right to compensation for services. Wadsworth v. Adams, 138 U.S. 380, 388; followed in Paul v. Machine Co., 87 Mo.App. 647, 654; and the plaintiff was guilty of such misconduct in employing the agent, employee and special confidant of Nicholson to bring to the attention of Nicholson the defendant's mining property, without permitting the defendants to know that he was bringing the property to the attention of Nicholson through Nicholson's special agent and confidant. Mechem on Agency, sec. 1027; Dennison & Co. v. Alrich, 114 Mo.App. 710. (4) Plaintiff's given instructions are based on the assumption of law that notice to Nicholson that Lennon was to receive a commission from defendants was notice of such fact to Thayer & Wilkins--Nicholson's principals. The legal effect of Nicholson's failure to notify Thayer & Wilkins that their agent and employee was getting a commission on the sale of the property to them was a fraud on Thayer & Wilkins, and in such case, notice to him was not notice to Thayer & Wilkins. Thomson, etc., Co. v. Electric Co., 65 F. 343, 344, and cases there cited; Allen v. Railway, 150 Mass. 206; Ray v. Water Co., 38 N.J.Eq. 158. (5) The cases are nearly, if not quite, uniform that where the double employment exists and is not known, no recovery can be had against the party kept in ignorance, and the result is not made to turn upon the presence or absence of designed duplicity and fraud, but is a consequence of established policy. Scribner v. Collar, 40 Mich. 378; Thomas v. Caulkett, 57 Mich. 392; Norman v. Roseman, 59 Mo.App. 682.
W. J. Owen for respondent.
(1) The evidence in this case shows that defendant Wampler, acting for himself and codefendants made the contract sued on with the plaintiff and without knowledge of whom he desired to connect with him, and the contract being thus made, the plaintiff unquestionably had the authority to institute and prosecute the suit in his own name. Sawyer v. Railroad, 156 Mo. 468; Ellis v. Harrison, 104 Mo. 277; Taylor v. Steamboat, 20 Mo. 254; Wolfe v. Railroad, 97 Mo. 473. (2) This contract was made and entered into prior to the organization and incorporation as shown by the cross-examination of defendant Wampler, and where the contract was thus made the parties became liable as partners. Furniture Co. v. Carpet Co., 127 Mo. 356. The relation that Nicholson bears to this transaction and to the firm of Thayer & Wilkins, is well shown by the evidence of Wilkins, of the firm of Thayer & Wilkins, and when witness Lennon, told Nicholson what plaintiff was getting, it was notice to Thayer & Wilkins, the associates of Nicholson, in acquiring and handling of this property, as each was the agent of the other in the transaction of this business and especially is this true where the one doing the dealing is the one who received the notice. Lebanon Bank v. Hallenbeck, 29 Minn. 322; Newall v. Bartlett, 114 N.Y. 399; Hall v. Goodnight, 138 Mo. 576; Chauteau v. Goddin, 39 Mo. 251; Smith v. Farrell, 66 Mo.App. 13.
The plaintiff's suit is upon a contract with defendants whereby they agreed through defendant, W. W. Wampler, that if plaintiff would directly or indirectly bring to the attention of an anticipated purchaser defendants' property known as the Little English Mine near Webb City, and said defendants should ultimately sell the same to said anticipated purchaser and the same be paid for, the defendants would immediately thereafter pay plaintiff the sum of $ 1,000; that plaintiff fully and fairly complied with the terms of their said contract, and although defendants sold said property to said anticipated purchaser for $ 45,000, which was paid in full, the defendants have failed and refused to carry out their said agreement with plaintiff to pay him said sum of $ 1,000.
The answer of defendants was a general denial with the following special defensive allegations, viz.: that they did not enter into the contract with plaintiff as stated by him; that the property sold was the property of the Majestic Mining Company in which defendants were stockholders; that plaintiff was the ground-boss and foreman of a mine known as the Alexander Mine owned by a firm by the name of Thayer & Wilkins; that one, Nicholson, was the agent and general superintendent of said mine of Thayer & Wilkins and that plaintiff was under his direction, and that it was the duty of plaintiff to state his knowledge of mines about to be purchased to said firm or their agent, Nicholson, without fee or reward; that said Nicholson had in his employ one, Frank Lennan, whom plaintiff employed to assist him in carrying out his contract; that plaintiff represented to defendant Wampler that he had a friend and partner who would cause said Nicholson to purchase defendants' property, but that his name could not be and would not be disclosed; and that for the sum of $ 500 to be paid himself and $ 500 to be paid said friend he would sell the mine. The answer further charged that defendants had been notified by the said Nicholson that if defendants entered into any agreement to pay any of his employees for the sale of the mine, he would not purchase it, and before the sale was consummated the said Nicholson requested defendants to furnish him their affidavits denying that they had made any agreement to pay any commission to any of his employees.
The evidence showed, that the defendants and one, Loomis, who was dismissed from the case because he was not served with summons, were the owners of the mine in question at the time the contract in suit was entered into, but that shortly thereafter they were incorporated as the Majestic Mining Company; that the defendants sold the property to Thayer & Wilkins for the sum of $ 45,000, which was fully paid. It was also shown that plaintiff was ground-boss for Thayer & Wilkins; that Lennan was also an employee of said firm as superintendent in the operation of the mine, and that Nicholson was their agent and general superintendent of mines and authorized to purchase mines.
The plaintiff's evidence tended to show that...
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