People's Nat. Bank of Rock Island v. Geisthardt

• Citation: 55 Neb. 232,75 N.W. 582
• Parties: PEOPLE'S NAT. BANK OF ROCK ISLAND, ILL., v. GEISTHARDT.
• Decision Date: 19 May 1898
• Court: Supreme Court of Nebraska

55 Neb. 232

75 N.W. 582

PEOPLE'S NAT. BANK OF ROCK ISLAND, ILL.,

v.GEISTHARDT.

Supreme Court of Nebraska.

May 19, 1898.

Syllabus by the Court.

1. In a case appealed from the county to the district court, the plaintiff may allege damages in a greater sum than was claimed in the county court, provided the amount alleged in the district court be within the jurisdictional limit of the county court.

2. An answer included a general denial, and also admissions accompanied by special denials. Held, that the defendant was not prejudiced by an order striking out all except the general denial.

3. A petition pleaded a contract made through an agent of defendant, and also that the defendant had adopted and ratified it. Held, that the averments were not inconsistent. The test of inconsistency is that the proof of one averment disproves the other.

4. The acceptance by the principal, with knowledge of the facts, of the fruits of an unauthorized act of an agent, is a ratification of such act. It relates back to the time of performance, and binds the principal as if he himself had been the actor.

5. The rendition of a bill for services does not estop the person rendering it from claiming and recovering a larger amount in a subsequent action on a quantum meruit, when the other party did not accept or acquiesce in the bill, but refused at once to recognize it as correct.

6. Advising with the sheriff as to the proper levying of a writ of attachment is a proper service to a client, for which an attorney is entitled to compensation.

7. The genuineness of a letter is sufficiently established to permit its introduction in evidence when it is shown that it was received in due and regular course of mail, in response to a letter addressed to the supposed writer.

8. A comment made by counsel in argument to the jury, with reference to a matter in evidence, will be presumed to have been made for a proper purpose, and within the limits of legitimate argument, the contrary not appearing.

Error to district court, Lancaster county; Hall, Judge.

Action by Stephen L. Geisthardt against the People's National Bank of Rock Island, Ill. Judgment for plaintiff, and defendant brings error. Affirmed.Burr & Burr and Pound & Burr, for plaintiff in error.

Thos. C. Munger, for defendant in error.

IRVINE, C.

This was an action by Geisthardt, a practicing lawyer, against the People's National Bank of Rock Island, Ill., to recover fees for services alleged to have been by him performed in and concerning the commencement of an action aided by attachment, by the bank against C. W. Mosher, to recover on two promissory notes of $5,000 each. There was also a count for money expended by Geisthardt in payment of costs, but, as there is no contest as to this count, it will not be further noticed. The plaintiff had judgment for $594.85, and the defendant brings the case here.

Several questions are raised with regard to the pleadings. The petition alleged that January 23, 1893, the defendant, by its agent, Charles G. Hawley, employed the plaintiff in the matter of collecting the notes, and in the prosecution of all proper suits for that purpose; that plaintiff performed all necessary and proper services to that end until January 30th, and began the attachment suit, “all of which proceedings were adopted and ratified by the defendant.”

The defendant moves the court to strike the petition from the files, because it did not conform to the petition in the county court, where it seems that the case originated. It is asserted that the court erred in overruling this motion. This we cannot determine, because the petition in the county court is not in the transcript. It would seem that the variance complained of was in claiming a larger sum for services than was claimed in the county court. If that was all, the variance was not material, the amount claimed in the district court being within the jurisdiction of the county court. Railway Co. v. Ogilvy, 18 Neb. 638, 26 N. W. 464;Volland v. Baker, 32 Neb. 391, 49 N. W. 381.

The defendant then filed an answer, beginning with a general denial, and proceeding to allege that Hawley had no authority to employ plaintiff; that, without authority, he had employed him to draw a petition and affidavits for attachment and garnishment, and file the same; that such services were worth $25, and no more; that an agent of defendant came to Lincoln, and, on learning that plaintiff had been employed, discharged him, and offered to pay him what his services were worth. It was then averred that the case had begun in the county court, and that the petition stated a different cause of action. The plaintiff moved to strike out all the answer except the general denial, and this motion was sustained. For reasons already stated, we cannot say that it was error to strike out that part pleading a variance between the averments in the two courts. Striking out the other averments did not prejudice the defendant. All the evidence which could be received thereunder was admissible under the general denial. The only effect of the new matter was to admit that plaintiff had been employed by Hawley, and that defendant had offered to pay him for what he had done prior to his discharge, which is all that plaintiff asks. While defendant undertook to plead an offer to pay what the services were worth, neither payment nor an actual tender was pleaded.

The defendant then moved that the plaintiff be required to elect on which of his several causes of action he would proceed. This motion did not attack the joining of the two counts for services and for money paid, but was based on the theory that the averments of employment by an agent, and of ratification, were of two causes of action, and were inconsistent. That theory is not sound. The plaintiff might well have pleaded employment by the defendant itself, and, under that averment, proved either employment by an authorized agent or a ratification of voluntary acts. By pleading more specifically, he narrowed the field of his own evidence, but did not state two causes of action, nor did he plead inconsistently. A contract may be made with an authorized agent, and the principal may so conduct himself thereafter that his acts would amount to a ratification, even had the agent been without authority. The proof of one state of facts would not disprove the other. That is the test of consistency. Blodgett v. McMurtry, 39 Neb. 210, 57 N. W. 985.

The case then came on for trial. The evidence tended to show that Hawley was a broker, and had negotiated three notes made by C. W. Mosher. Two of these, for $5,000 each, were sold to the defendant; the other, for $10,000, to the Dixon National Bank. Mosher was president of the Capital National Bank of Lincoln, and the...