Southgate v. Atlantic & Pacific R.R. Co.

• Decision Date: 31 October 1875
• Citation: 61 Mo. 89
• Parties: W. W. SOUTHGATE, Respondent, v. THE ATLANTIC AND PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

61 Mo. 89

W. W. SOUTHGATE, Respondent,

v.THE ATLANTIC AND PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Phelps County Circuit Court.

J. N. Litton, for Appellant.

I. The services were rendered for the South Pacific road, and 1. the petition failing to allege a consideration for the pretended promise of appellant to pay therefor, no proof can supply the defect. 2. Such promise should have consideration, (Cook vs. Elliot, 34 Mo., 586; Thorp Val. Verb. Prom., pp. 83-4, § 11) unless in writing, signed by appellant, would not be binding, (Wagn. Stat., 656, § 5) and it must have been made to appellant. (Page vs. Becker, 31 Mo., 466.) 3. There was no proof of any agreement so to pay; and no proof of any consolidation of the two roads. Sec. 1 of the act of March 15th, 1871, is no proof, and the court could not take judicial cognizance of that fact. (Gorman vs. Pac. R. R., 26 Mo., 453.) 4. Sec. 2 of the act of March 24th, 1870, fixes no responsibility on appellant for private contracts of the South Pacific Railroad incurred prior to its sale.

II. Santee was merely land agent of the South Pacific Railroad, and certainly was not a managing officer and had no power, in his own discretion, to employ counsel for the road.

III. The first instruction given for plaintiff was wrong. No debt bore interest at common law. This debt was on account, and, under the statute, bore interest only from demand. Of demand there was no proof.

IV. The second instruction for plaintiff was also wrong; 1st. because there was no evidence on which to base a submission to the jury, of the question of merger; much less of assumption by appellant, of the liabilities of the South Pacific Railroad; 2d. because the question of liabilty was for the court, not the jury.

It is error to submit a question of law to the jury. (Coleman vs. Roberts, 1 Mo., 97; Fugate vs. Carter, 6 Mo., 267; Newman vs. Lawless, 20 Mo., 279; Hickey vs. Ryan, 15 Mo., 62; Atterberry vs. Powell, 29 Mo., 429; Crawley vs. Mullins, 48 Mo., 517.)

V. The proof as to value of services was incompetent. The witness' attention should have been called to the services actually rendered, and his opinion asked in reference thereto.

Henry Flanagan, with whom was A. M. Lay, for Respondent.

I. In the absence of proof to the contrary, it is to be presumed that the general superintendent had power to employ the respondent, and that in doing so, he acted within the scope of his authority. (Tomlinson vs. Catlett, 4 Blackf., 436; Sto. Ag., §§ 126, 127, 131, 132, 133; New Albany R. R. Co. vs. Haskell, 11 Ind., 302; Russell vs. Reece, 61 Eng. C. L. R., 660; Doan vs. Duncan, 17 Ill., 273.)

II. The officers of the company were aware that the respondent was performing those services, and even though the superintendent had no authority to employ respondent--and it is not in evidence that he had not--as the appellant has received the benefit of respondent's labor, it is liable to pay for it. (Merchants' Bank. of Macon vs. Cent. Bank. of Georgia, 1 Kelley [1 Geo.], 418; Rice vs. Groffman, 56 Mo., 434.) No objection was made by any officer of the company, to respondent's services; on the contrary, he consulted with and received instructions from the general attorneys in St. Louis, in addition to those received by him from the superintendent, and he was recognized by other officers of the company. Appellant cannot now be allowed to say that the original agreement was made by a person not legally authorized to contract. (Fistle vs. La Rue et al., 15 Barb., 323; Kiley vs. Forsee, 57 Mo., 390; Watson vs. Bigelow, 47 Mo., 413; Keenan vs. Ins. Co., 12 Iowa, 126; 1 Pars. on Cont., pp. 49, 50, 51; Bredin vs. Dubary, 14 Serg. & R., 27; Veazie vs. Williams, 8 How. (U. S.), 134; McCullod vs. McGee, 16 Penn. St., 289; Brigham vs. Peters, 1 Gray, 139.)

III. The appellant offered no evidence touching the agency either of Benson or Santee. It was not denied that they were superintendents as alleged and proved by respondent. The instructions asked by the appellant were therefore properly refused. There was no conflict of testimony as to the superintendent's power to employ the respondent, nor did the appellant attempt to show that the superintendent acted beyond his authority in retaining the respondent. (New Alb'y R. R. Co. vs. Haskell, supra.) Nor was the respondent required to ascertain what power was possessed by the superintendent, or what power was intended to be given to him. The respondent might well infer from the acts of the superintendent and from those of the other officers of the company, that the requisite authority was vested in the superintendent. If these acts were such as to lead the respondent to believe that the superintendent acted within the scope of his authority, however limited the power of the superintendent might have been, as between him and the company, the latter is liable. There is certainly strong proof of apparent authority. (Johnson vs. Jones, 4 Barb. 369; Perkins vs. West. Ins. Co., 4 Cow., 645; Com. Bk. vs. Norton, 1 Hill, 501; Sto. on Ag., § 130, et seq.)

IV. Seay's testimony as to the value of respondent's services was competent. The bill of particulars filed by respondent, under the first count, was for monthly wages or salary. The testimony tended to prove the value of said service per month.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff, an attorney, brought this action to recover the reasonable value of certain professional services, alleged to have been rendered defendant, and of certain other services rendered another corporation, which it is alleged, the defendant promised, after the services had been rendered, to pay.

The first count in the petition claimed fifteen hundred dollars for services performed, and for counsel and services as an attorney at law, rendered at defendant's request.

The second count claimed the sum of one hundred and thirty dollars for legal services rendered the South Pacific Railroad, which it was averred the defendant assumed and promised to pay. The answer was a denial of all the allegations contained in the petition. The bill of particulars accompanying the first count referred to certain specific cases attended to, and stated a demand of payment for counsel and services as an attorney generally from March 15th, to October 15th, 1867. The bill of particulars to the second count showed the items for which the services were claimed. The plaintiff gave testimony in his own behalf and stated that the services were performed, and that he was employed by the Superintendent of the road, and that he at different times corresponded with the various officers and managers of the road, and that they recognized him as an attorney and acquiesced in his employment.

He also proved, by a witness, against the objection of the defendant, that the services of a good attorney at the place where plaintiff was, would be reasonably worth two hundred dollars per month. The evidence in reference to the second count showed that the plaintiff was employed by a local agent of the South Pacific Railroad; but there was no evidence to show any promise by the defendant to pay the debt.

The court instructed the jury that if they found that plaintiff was in the service of the defendant, and in the service of the South Pacific Railroad, in manner as...