E. E. Souther Iron Company v. Woodruff Realty Company

• Decision Date: 03 June 1913
• Parties: E. E. SOUTHER IRON COMPANY, Appellant, v. WOODRUFF REALTY COMPANY, Respondent
• Court: Missouri Court of Appeals

158 S.W. 69

175 Mo.App. 246

E. E. SOUTHER IRON COMPANY, Appellant, v. WOODRUFF REALTY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

June 3, 1913

May 8 1913, Argued and Submitted

Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Rodgers & Koerner for appellant.

(1) Plaintiff is entitled to recover on the theory of an implied contract of indemnity. Implied contracts of indemnity are based upon equitable considerations and arise when one person does an act at the request and for the benefit of another whether as agent or otherwise. Knox County v. Hunolt, 110 Mo. 67, 76; Dugdale v. Levering, 10 L. R. A., Com. Pleas (Eng.) 196; Culmer v. Wilson, 13 Utah 129, 57 Am. St. Rep. 713; King v. United States, 1 C. C. 38; Howe v. Railroad, 37 N.Y. 297; Nelson v. Cook, 17 Ill. 449, 22 Cyc 95, 96; Story on Agency (2 Ed.), secs. 339, 340. And when one person is held technically liable for an act committed by another. Halliburton v. Carter, 55 Mo. 435, 439; Donald v. Guy, 127 F. 228; Navigation Co. v. Campania, etc., 144 N.Y. 663; Pfau v. Williamson, 63 Ill. 16; Bridge Co. v. Creem, 92 N.Y.S. 855. (2) Plaintiff is entitled to recover on the theory that it has expended money for the use and benefit of defendant, which defendant in equity and good conscience is bound to repay. Knox County v. Hunolt, 110 Mo. 67; Banking Co. v. Commission Co., 195 Mo. 262; Nutter v. Sydenstricker 11 W.Va. 535; DeBard v. Smith, 9 Ala. 788; Van Santen v. Standard Oil Co., 81 N.Y. 171, 4 Cyc. 325, 27 Cyc. 833, et seq.; Fox on Contracts, p. 122. (3) It is not necessary that the acts for which indemnity is sought should have been done at the express request of defendant. The request may be inferred from the beneficial natural of the consideration and the circumstances of the transaction. 4 Cyc. 325, 27 Cyc. 837, et seq.; Oatfield v. Waring, 14 Johns. 188; Fox on Contracts, 119. And a subsequent ratification, express or implied, amounts to a previous request. Wolff v. Mathews, 39 Mo.App. 376; Hackett v. Van Frank, 105 Mo.App. 384; Brewing Co. v. Dold, 45 Mo.App. 603, 610. (4) The judgment in the case of Kirn v. Iron Co., 146 Mo.App. 451, is no bar to this action. Plaintiff and defendant in the present case were not adverse parties in the Kirn case and the issues here involved were not there litigated. Hence the doctrine of res adjudicata does not prevent plaintiff's recovery. Peters v. St. Louis, 226 Mo. 62; Charles v. White, 214 Mo. 187; Culmer v. Wilson, 13 Utah 129. (5) Defendant had knowledge of the Kirn case and its officers were present at the trial. Therefore the judgment in said case is conclusive against defendant as plaintiff's indemnitor. City of Springfield v. Plummer, 89 Mo.App. 515.

Percy Werner and Everett W. Pattison for respondent.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

One Joseph Kirn instituted an action against the E. E. Souther Iron Company, appellant here, referred to hereafter as the Iron Company, to recover damages for personal injuries sustained by him while engaged in working upon a building which Kirn alleged was being erected by the Iron Company. Kirn recovered, and the Iron Company appealed from that judgment to our court, where the judgment of the circuit court was affirmed. [See Kirn v. E. E. Souther Iron Company, 146 Mo.App. 451, 124 S.W. 45.] It is sufficient to refer to the report of that case for the facts and matters there in issue, only adding that in that case the Iron Company contended that the building was not being erected by it but by the Woodruff Realty Company, hereafter referred to as the Realty Company, the respondent in this present case. The Realty Company did not appear and was not a party to that case. Upon the affirmance of the judgment of the circuit court in favor of Kirn by our court, the Iron Company, having paid off the judgment, instituted the present action against the Realty Company to recover from the latter the amount paid on the judgment, as well as the costs and expenditures made by the Iron Company in connection with the above referred to litigation.

As the cause was submitted to the trial court upon an agreed statement of facts, substantially following the averments of the petition, it will not be necessary to set out the petition at length. If it becomes important as to any matters before us, we will set out such parts as are necessary.

By the agreed statement it is admitted, among other things, that one Albert G. Souther, since deceased, Frank E. Codding and William M. Scudder undertook to organize a corporation to acquire title to ground and construct thereon office and factory buildings which, "when completed, would be occupied by (the Iron Company) as tenant of the proposed corporation;" that the proposed corporation was duly incorporated according to the laws of this State under the name of Woodruff Realty Company July 27, 1907, and thereupon Souther, Codding and Scudder were elected as its executive officers for the ensuing year, which offices they filled until the month of July, 1908, when Souther died, and that during all of that time they were the executive officers of the Iron Company; that in the months of May, June and July, 1907, Souther and Codding, "acting for said proposed corporation," arranged for the purchase of ground in St. Louis County "and employed one Charles B. McCormack to superintend the construction of buildings thereon;" that in order to legally construct the proposed buildings, a permit from the assessor of St. Louis County was necessary and the Realty Company being at that time unincorporated, the Iron Company, "for the accommodation and benefit of said proposed corporation, consented" that the permit be issued in the name of the Iron Company; that on the 9th of July, the assessor of the county issued the permit in the name of the Iron Company and thereupon the work of construction was begun in that month and continued until about March, 1908, when the building was completed. It is further agreed that McCormack and a foreman under him, "acting for the defendant herein, had charge of and superintended the construction of the buildings," and that the Iron Company at various times during the work of construction and prior to the month of February, 1908, "for and on behalf of" the Realty Company, paid wages of workmen engaged therein and that in the month of January, 1908, plaintiff, the Iron Company, moved its offices and factory to the premises mentioned and took possession of a portion thereof as the tenant of the defendant Realty Company. The institution by Kirn of the action above referred to against the Iron Company; the rendition of the judgment for $ 1335 and costs; the appeal; the affirmation of the judgment and that in defending the action the Iron Company had necessarily been required to pay out and did pay out the sum of $ 388.13 for attorney's fees and expenses, which sum it is admitted was reasonable in the premises; that on the 12th of January, 1910, plaintiff here satisfied the Kirn judgment, in so doing paying out the sum of $ 1520.21, being the amount of the judgment with interest and costs, and that Codding, Souther and Scudder had actual notice of the Kirn suit and of all the proceedings therein, are all admitted. It was further agreed that the entire record of the Kirn cause, including the bill of exceptions setting out the testimony and the instructions, as well as the briefs of counsel in that cause in our court, should be considered in evidence, "with the exception and understanding that any conflict in the testimony and the fact involved therein may be determined by the court in the present case upon a reading of all the testimony so conflicting." It was further stipulated that on the 29th of July, 1907, the Realty Company acquired title to the ground on which the buildings were constructed and that "said work of construction was, in all its stages, in the sole charge of the defendant herein (Realty Company) its officers, servants and agents, and plaintiff (the Iron Company) never had, nor did any person for it ever have, any control over said McCormack, said foreman, or said Kirn, or either of them, or said work of construction or any part of same; that all the services rendered by plaintiff (the Iron Company) herein for the benefit of defendant (the Realty Company) herein, as aforesaid, were gratuitous." Judgment was demanded in the petition for $ 1908.34, with interest from the 12th of January, 1910, and for costs.

The answer, after a general denial, pleads the judgment in favor of Kirn and against the Iron Company before mentioned in bar of the present action as against it, averring that in that action the cause was submitted to the jury on the identical issue raised by the amended petition in this cause; that instructions were given by the trial court both on behalf of Kirn, the plaintiff in that suit, and the Iron Company, defendant therein, upon the issue of whether the party liable for the injury to said Kirn was the Iron Company or the Realty Company; that an instruction was given on behalf of the plaintiff, Kirn, to the effect that if the jury in that cause believed from the evidence that Kirn and the foreman over him, by whose negligence he alleged that he had been injured, were employed by the defendant in that cause, the Iron Company, plaintiff here, and if the jury believed that Kirn was injured by the negligence of the foreman, their verdict should be for Kirn, and that an instruction was given in behalf of the defendant in that cause, plaintiff here, to the effect that if the jury should find and believe that the building about which Kirn was working at the time of his injuries, was...