Springfield Gas & Electric Co. v. Southern Surety Co.

• Decision Date: 16 March 1923
• Docket Number: No. 3209.,3209.
• Citation: 250 S.W. 78
• Court: Missouri Court of Appeals
• Parties: SPRINGFIELD GAS & ELECTRIC CO. v. SOUTHERN SURETY CO. of OKLAHOMA et al.

250 S.W. 78

SPRINGFIELD GAS & ELECTRIC CO. v. SOUTHERN SURETY CO. of OKLAHOMA et al.

No. 3209.

Springfield Court of Appeals. Missouri.

March 16, 1923.

Rehearing Denied April 14, 1923.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the Springfield Gas & Electric Company against the Southern Surety Company of Oklahoma and another. The case was referred, and, from the referee's report, plaintiff filed exceptions which were sustained by the trial court, which entered judgment for plaintiff, and defendants appeal. Judgment reversed, with directions to approve report of referee and enter judgment as recommended by him.

John P. McCammon, of Springfield, for appellants.

T. S. Heffernan and Alfred Page, both of Springfield, for respondent.

COX, P. J.

This is an action to recover for light, power, and heat, furnished by plaintiff to the Landers Theater Building in the city of Springfield. On " application of plaintiff, a referee was appointed who took the testimony and made a report to the court recommending judgment for plaintiff for $1,815.54. Exceptions to this report were filed by plaintiff, which the court sustained, and then, after reviewing the testimony, rendered judgment for plaintiff for $4,779.22, and defendants appealed.

This litigation grew out of the following facts: The Landers Theater Building was owned by the Landers Theater Company, and was leased to the Jefferson Theater Company, and the Southern Surety Company of Oklahoma became surety to the Landers Theater Company for the payment of rent by the lessee. The lessee defaulted, and the surety company took possession of the theater building and controlled and operated it from June 1, 1914, to May 1, 1917, the date of the expiration of the lease upon which it was surety. About the time the surety company took over the theater building, Mr. M. E. Whipple signed a contract with plaintiff by which it was agreed that the surety company would take and pay for light and power to be furnished by plaintiff for use in the Landers Theater Building. This contract was a printed form on a card, and contained a provision that the surety company would take and pay for the light and power furnished by plaintiff to the theater building for one year, and until notice in writing should be given plaintiff to discontinue the service. A similar contract was signed by Mr. Whipple for the surety company for steam heat for the building. When the lease on the building expired May 1, 1917, the surety company relinquished possession of the building, but did not give plaintiff written notice to discontinue furnishing the light, power, and heat to the building. This suit was filed November 1, 1920, and plaintiff demands compensation for light, pow, and heat furnished to the theater building up to March 1, 1919. The defendant, the Southern Surety Company of Iowa, became successor to the Southern Surety Company of Oklahoma, and assumed all its obligations, and was made a party defendant for that reason. The defendants denied the authority of Mr. Whipple to execute the contract, but admitted liability for the service up to the termination of the lease on the building, May 1, 1917, because they had received and used the light, power, and heat for that time. Defendants also asserted that the bill to May 1, 1917, had been paid by certain services rendered to plaintiff by one Emmett Newton who was in charge of the theater building for the surety company, and by the use of certain rooms in the building that had been occupied by plaintiff.

The referee found against defendants as to the authority of Mr. Whipple to execute the contract and as to the services of Mr. Newton to plaintiff, and allowed a certain sum to defendants for rent of two rooms in the building, and found a balance due plaintiff to May 1, 1917, of $1,815.54, and found for defendants as to the claim of plaintiff for light, power, and heat furnished after May 1, 1917, on the ground that plaintiff had waived its right to insist on written notice to discontinue the service being given. Defendants acquiesced in the finding and filed no exceptions. The plaintiff accepted the finding as to the allowance for rent of rooms to May 1, 1917, but filed exceptions to the finding of the referee that it was not entitled to recover for services rendered after May 1, 1917. The trial court sustained the exceptions of plaintiff, and held that defendants were liable for the light, power, and heat furnished to March 1, 1919, as claimed by plaintiff, and rendered judgment accordingly. The contest is now limited to the amount claimed for services from May 1, 1917, to March 1, 1919. Plaintiff relies upon the contract signed by Mr. Whipple at the time the service began in June, 1914, by which it claims that the surety company was bound to pay for the services until written notice to discontinue was, given, and, since such notice was not given, plaintiff should recover for the full time asked for. The defendants deny the authority of Mr. Whipple to bind them by such a contract, and make the further defense that plaintiff had waived the provision in the contract, requiring defendants to give written notice to plaintiff to discontinue the service.

Respondent contends that, since appellants filed no exceptions to the report of the referee, they are not in position to complain here. We do not agree with that contention. The defendants were willing to accept the recommendation of the referee, and, had his report been approved and judgment entered thereon, they would have been satisfied with the result, even though not satisfied with his findings of fact or conclusions of law. They had no reason to complain until the trial court took action on the report of the referee, and, when the court reviewed both the facts and the law and made a finding of facts which differed in a material part from the facts found by the referee and then rendered a different judgment from that recommended by the referee, they were then, for the first time, in a position to complain that error injurious to them had been committed. Up to that time they were satisfied, and there was no occasion for them to save exceptions. We think that, when the court sustained the exceptions of plaintiff to the report of the referee and made its own findings on the evidence reported to the court by the referee, and then rendered judgment upon its own findings, the parties were in the same position as they would have been had there been no referee and the court had been the trior of the facts in the first instance.

This is clearly a case in which a compulsory reference was properly directed, and, that being true, the court undoubtedly had the right to reject the finding of facts by the referee in whole or in part and make its own findings and pass its judgment thereon, without being bound by the findings of the referee. Utley v. Hill, 155 Mo. 232, 276, 55 S. W. 1091, 49 L. R. A. 323, 78 Am. St. Rep. 560; State ex rel. v. People's Ice Co., 246 Mo. 138, 202, 151 S. W. 101; St. Louis to Utley v. Parker-Washington Co., 271 Mo. 229, 196 S. W. 767; State ex rel. Saline County, v. Wilson, 288 Mo. 315, 232 S. W. 140.

It is also well settled by the authorities above cited that, on appeal in a law case, we must regard the findings of fact of the referee as far as approved by the trial court, and the findings of the court that may be different from the findings of the referee, as having the same force and effect as the verdict of a jury or a finding by the court in a trial by it when a jury has been waived. The Legislature, in 1910, passed an act found in the Acts of 1919 at page 213 and in the Revised Statutes of 1919 as section 1444, by which this rule was changed and by that act the appellate courts were authorized to review the findings of fact of both the referee and the court, In all cases in which a referee had been appointed and had reported to the court. This act, however, was held unconstitutional in State ex rel. Saline Co. v. Wilson, supra, so the law remains as it was before that enactment.

The liability of defendants for light, power, and heat after May 1, 1917, hinged on two questions: First. The authority of Mr. Whipple to bind the surety company by the card contract executed by him for it on June 5, 1914, by which it was bound to pay for light, power, and heat until notice in writing should be given plaintiff to discontinue the service. Second. If that contract was binding on defendant, did plaintiff waive the provision requiring written notice to dicontinue the service?

On the first proposition appellants contend that the only authority possessed by Mr. Whipple as agent of the surety company was found in certain writings introduced in evidence and that, as long as his authority was evidenced by these writings, all other evidence as to his authority should be excluded, and, it being apparent from these writings that he did not have authority to bind his Principal by a contract of the character of the one relied on by plaintiff in this case, the, defendants were not bound by that contract. The legal proposition contended for by appellants is correct as a general principle. It is recognized as settled law by all courts that a party dealing with an agent must, as a general rule, ascertain for himself that the agent has authority to act for his principal. The writings referred to by appellants fixed the limits of the authority .of Mr. Whipple as their agent in the general work of the company that was intrusted to him, and, had there been no other evidence of his authority to act in this partitular instance than what is shown by the writings, which defined his authority in a general way, we should hold that he did not have authority to bind his principal by his contract employing plaintiff to furnish light, power, and heat for the Landers Theatei' Building at all. His action in executing this contract, however, was not done as a part of his duty under...