Rand v. Sage

• Decision Date: 10 March 1905
• Docket Number: Nos. 14,180 - (190).,s. 14,180 - (190).
• Citation: 94 Minn. 344
• Parties: E. C. M. RAND v. RUSSELL SAGE.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

94 Minn. 344

E. C. M. RAND v. RUSSELL SAGE.¹

Nos. 14,180 - (190).

Supreme Court of Minnesota.

March 10, 1905.

Action in the district court for Ramsey county against defendant, as assignee in trust of Hastings & Dakota Railway Company, to recover

$15,000 for services rendered. The case was tried before Olin B. Lewis, J., and a jury, which rendered a verdict in favor of plaintiff for $7,500. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed and new trial granted.

Owen Morris and John D. O'Brien, for appellant.

Davis, Kellogg & Severance, for respondent.

LEWIS, J.

Plaintiff seeks to recover in this action the reasonable value of services claimed to have been performed by him for defendant under and pursuant to a certain verbal agreement. The complaint alleged that defendant Russell Sage, of New York City, was the assignee in trust of the Hastings & Dakota Railway Company; and that by the terms of the instrument of trust certain lands belonging to the railway company were conveyed to him in trust, with authority and power to sell, handle, and manage the same, and to employ sufficient assistance to enable him so to do; that on or about September, 1897, plaintiff was engaged by defendant to take charge of and perform services in relation to these lands, which employment he accepted, and performed services from September, 1897, until September, 1902; that the amount of land involved was about two hundred thousand acres; and that his services included the charge of general litigation in connection therewith, and the listing, appraisement, and sale thereof, and the value of services so rendered was claimed to be $15,000.

The answer admitted transfer of the lands to defendant Sage, in trust, with power to sell and lease the same, and to reimburse himself in certain sums, and thereafter to divide the money among the stockholders of the Minnesota Railway Construction Company; that in January, 1895, at New York City, defendant, in his individual capacity, but not as trustee, employed plaintiff to perform duties concerning defendant's individual business at the stated compensation of $100 per month, which, about January 1, 1901, was increased to $200, and continued at that until September 1, 1902, when the arrangement was terminated, and alleged that plaintiff had been paid in full. Employment by defendant, as trustee, of plaintiff, was specifically denied, and it was alleged that whatever services plaintiff may have performed in relation to the lands referred to were done for defendant personally, and covered by his salary.

For reply to this answer plaintiff admitted that he had been employed by defendant in an individual capacity, but that the services alleged in the complaint to have been rendered were additional ones, performed for defendant as trustee, under a separate and different agreement. The trial resulted in a verdict for plaintiff for $7,500.

1. Upon direct examination plaintiff testified that he first commenced to work for Sage in the city of New York, in 1895, under a verbal contract of $100 per month, which is stated by the witness as follows:

The substance of the conversation was that I was to receive $100 a month for attending to his personal matters; that is, matters in which he was wholly interested. For matters that were known as outside matters, in which others were interested, I was to receive a fair compensation.

The witness testified that under this arrangement he went to work in 1895, and continued until September 1, 1902; that he had a conversation with Sage in September, 1898, as follows:

Mr. Sage called my attention to what was known as the land matters (in the way of conversation) in Minnesota, and stated that he would like to have me go up there, and look after them, or look into them, and see what could be done — take any steps that were necessary for the benefit of those lands. And I stated to him, "This, Mr. Sage, will be an outside matter." He says, "Yes." And I said, "I receive special compensation for it, because other parties are interested in these lands with you."

The witness then stated, with more or less detail, the nature of the business transacted by him for defendant, and his testimony was that he was performing services for Sage in connection with other matters not of a personal nature, in which Sage was interested with other parties, and for which he was allowed extra compensation. With reference to his services in connection with the lands in question, the witness stated the number of trips he made to St. Paul, and the character of work done in the way of listing, advertising, and looking after litigation concerning the lands.

Defendant attacks the sufficiency of plaintiff's testimony with great vigor, and insists that it is overwhelmed by the array of evidence offered on the part of defendant to show that under the system arranged for the care and disposition of the lands plaintiff had no part; that special agents were employed at St. Paul, having entire charge of the advertising and sale of the lands, and that counsel was employed to look after the litigation; and whatever plaintiff did in connection therewith was of a purely incidental nature, and voluntarily performed for defendant under his personal contract with him. We have examined the record with the view of determining whether the evidence offered by defendant was of such convincing character as to justify the conclusion claimed for it, but are unable to meet the views of defendant in this respect. It is practically admitted by defendant that certain services were rendered by plaintiff in relation to the lands in question; that such services extend over a period of years, and had to do, more or less, with the examination of the lands as well as with litigation concerning them; and on the whole record we think it was a question of fact for the jury to determine wherein the right was.

2. Defendant insists that from the substance of the conversation which is claimed by plaintiff to constitute a contract, and which has already been recited, it conclusively appears that whatever contract was made was with defendant in his individual capacity, and not as trustee. This position is not well taken. It is admitted that Sage was in fact the trustee, and had in his personal charge the lands referred to, with authority to dispose of them and account for the proceeds. If defendant was authorized to execute the trust and incur the necessary expense for that purpose, he had authority to employ plaintiff to assist in accomplishing that purpose; and it follows that, if Sage...