Swayne v. Union Mut. Life Ins. Co.

• Decision Date: 11 February 1899
• Citation: 49 S.W. 518
• Parties: SWAYNE v. UNION MUT. LIFE INS. CO.
• Court: Texas Court of Appeals

49 S.W. 518

SWAYNE v. UNION MUT. LIFE INS. CO.

Court of Civil Appeals of Texas.

February 11, 1899.

Appeal from Tarrant county court; Geo. W. Armstrong, Judge.

Action by James W. Swayne against the Union Mutual Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Q. T. Moreland, for appellant.

STEPHENS, J.

By the undisputed evidence, appellant was not employed by the company as alleged, but by one Imboden, who had no authority in fact to employ him in behalf of the company, it being the understanding between Imboden and Robertson that Imboden was to employ appellant on his own account and at his own expense, and there is no dispute as to this qualification of his authority to employ. So that, though Robertson, as a collecting agent, may have had the power to employ counsel for the company (Mechem, Ag. § 388), he did not in fact exercise that power in this case, nor did he authorize Imboden to.

Nor can it be said, under the circumstances, that the company would be bound on account of the alleged ratification in accepting the benefits of the service rendered by appellant. It was not within its power, after the service had been rendered, to reject such benefits. Ratification as a result of taking the benefits of an unauthorized transaction implies the power of election to take or not to take; that is to say, when the principal discovers that the agent has exceeded his authority, he cannot then, without being bound, hold on to benefits derived from the unauthorized transaction, when it is within his power, by a repudiation of the unauthorized act, to restore such benefits to the one from whom they have been acquired. Besides, in this case it appears that the service of appellant was rendered with the understanding on the part of Robertson that he was acting in the interest of Imboden, and under independent employment by Imboden, and that settlement was made with Imboden upon this basis, without any reason to suspect on the part of Robertson that appellant was looking to him or the company for his fee. It was the duty of appellant to know the extent of Imboden's authority in employing him, and, if not satisfied with Imboden as his employer or paymaster, to apprise the company, through Robertson, of that fact, at least before the settlement with Imboden was made.

Whether, under the circumstances, the transaction imported authority in Imboden to employ appellant in behalf of the company, and whether appellant would be entitled to recover on account of Imboden being thus, in effect, held out as having authority to make such employment, we need not decide, since the petition fails to allege any such ground of recovery. See Rail v. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865.

CONNER, C. J. (dissenting).

It is with the greatest hesitation that I differ from my associates, but I have been unable to avoid the conviction that appellant is entitled to recover as prayed for, and hence most respectfully enter my dissent from the decision of the majority herein. In order that the writer's view of this case may be made apparent, all essential parts of the pleadings and evidence will be set out.

Omitting formal parts, the petition was as follows: "The petition of Jas. W. Swayne, complaining of the Union Mutual Life Insurance Company, of Portland, Me., represents that the plaintiff is a resident of Tarrant county, Tex., and that the defendant is a corporation duly incorporated under the laws of the state of Maine, and has its principal office in the city of Portland, Me.; that the said defendant has no office in Tarrant county, Tex., or in the state of Texas; that the plaintiff is now, and has been for several years, a practicing attorney of Tarrant county, Tex.; that heretofore, to wit, on the 1st day of January, A. D. 1896, the defendant employed the plaintiff to foreclose a certain mortgage held and owned by the defendant against one Josephine H. Ryan, said mortgage covering a certain house and lot on Houston street, in the city of Ft. Worth, Tex., of the value of $12,000; that the plaintiff foreclosed said lien, and straightened the title to said property for defendant; that the amount of said note so sued upon was for, to wit, the sum of $9,800; that the defendant, for such services, promised, agreed, and became bound to pay plaintiff a reasonable fee for his services in foreclosing said mortgage for defendant, and clearing the title to the said property; that the reasonable fee for services was five hundred dollars; that by reason of such employment and said services rendered defendant by plaintiff, and the acceptance of said services by defendant, the defendant promised plaintiff to pay him the sum of five hundred dollars, the reasonable fee for said services,"—followed by prayer for judgment for $500, with interest at 6 per cent. from January 1, 1897, and costs, and "for general relief." The defendant answered by general demurrer and a general denial. The case was tried on May 18, 1898, before the court, a jury being waived, and resulted in a judgment for defendant.

The following are the facts, and all the facts:

"James W. Swayne, plaintiff, being duly sworn, testified as follows: `I am an attorney at law. About January 1, 1896, Mr. L. B. Imboden, of Ft. Worth, Tex., handed me certain pleadings which had been prepared and signed by Robertson & Davis, a firm of lawyers of Waco, Tex. Mr. Imboden informed me that he had received the pleadings from said attorneys, and that they had requested him to hand them to an attorney here in Ft. Worth, who would file them in a certain receivership proceeding then pending in one of the district courts of Tarrant county, Tex., and for me to give my attention to the case as made by the pleadings which I was to file. The pleading was an intervention by the defendant in this case in said receivership proceedings, to foreclose a mortgage on certain property in the city of Ft. Worth, Tarrant county, Tex., of the value of $12,000; and the mortgage was given to the defendant, the Union Mutual Insurance Company, of Portland, Me., to secure an indebtedness of $9,800. I filed the pleading in the receivership proceedings, and thereafter amended the same, and filed such other pleadings as thereafter became necessary, and was assisted from time to time by the firm of Robertson & Davis; and I continued to give the matter my personal attention until it was finally adjusted satisfactorily in the receivership proceedings. A reasonable fee in the entire case would be $1,500, and I am here suing for one-third of that amount as my compensation, and I think my services were reasonably worth that sum. So far I have never received any compensation for the work done by me in the above-mentioned matter. Imboden said he was the company's agent. The defendant company accepted my services, as I supposed, and no question was ever made as to my authority to prosecute the suit, and I did so at times, assisted by one or the other of the above-mentioned firm of lawyers.' Cross-examination: `I was never employed by anybody except as above stated, when Imboden handed me the pleadings to file. I had no contract with Messrs. Robertson & Davis, nor did I have any contract with defendant insurance company. I supposed I was acting for the defendant insurance company in this case, together with Messrs. Robertson & Davis.' Witness was handed the following letter by defendant's counsel, which he identified as having been written by himself. Said letter is as follows:

                        "`Fort Worth, Texas, Dec. 15, 1896
                "`Messrs. Robertson & Davis — My Dear
                Sirs: I have waited many months to hear
                from you in reference to our fee in the case
                of the Union Mutual Life Ins. Co. against
                Josephine H. Ryan et al., in which we foreclosed
                

                our lien last spring. My understanding
                at the time was that Mr. Crowl was to pay
                the debt and our fee, and that the Union
                Mutual Life Ins. Co. was to loan him the
                money. Please let me know what is the
                status of the matter, as I am badly in need
                of my part of the fee, which is one-third. I
                have refrained from writing on account of the
                trouble of your Gen. Robertson, which I am
                glad to know has terminated so favorable to
                him. Hoping to hear from you soon, I am
                    "`Yours, truly, Jas. W. Swayne.'
                

"C. M. Templeton, being introduced by...