Turner v. Chillicothe & Des Moines City R.R. Co.

• Citation: 51 Mo. 501
• Court: Missouri Supreme Court
• Decision Date: 28 February 1873
• Parties: SMITH TURNER AND LUTHER T. COLLIER, Appellants, v. THE CHILLICOTHE & DES MOINES CITY RAILROAD COMPANY AND WILLIAM S. MOORE & JERRY NOLAND, Respondents.

51 Mo. 501

SMITH TURNER AND LUTHER T. COLLIER, Appellants,

v.THE CHILLICOTHE & DES MOINES CITY RAILROAD COMPANY AND WILLIAM S. MOORE & JERRY NOLAND, Respondents.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Common Pleas Court of Livingston County.A. H. Vories, for Appellant.

There was no evidence that it was any part of the business of the Treasurer of the Railroad to employ attorneys or to contract in reference thereto. (Sto. Agency, 6th Ed., § 134, et seq., and authorities there cited. 1 Greenl. Ev., 5th Ed., §§ 113, 114; Swearingen vs. Knox, 10 Mo., 31.)

Turner & Collier, for Respondent.

The Rail Road Company was bound by the acts, declarations and promises of its officers, Shanklin and Ballew. (Western Bank vs. Gilstrap, 45 Mo., 420; Mumford vs. Hawkins, 5 Denio, 355; American Insurance Company vs. Oakley, 9 Paige, 496.)

SHERWOOD, Judge, delivered the opinion of the court.

This action was brought in the Common Pleas Court of Livingston County, by Turner and Collier, against The C. & D. M. City R. R. Co., and Moore, and Noland, for recovery for legal services alleged to have been jointly rendered at the special instance and request of said R. R. Co., and said Moore and Noland, in defending them in a large number of suits before Lucien Gordon, James C. Bernard, and ________ McBride, respectively, as justices of the Peace; and a bill of items, referred to in the petition, was annexed thereto, showing in what causes the alleged services were performed. Defendants, Noland and Moore, filed their separate answer denying the allegations of the petition, and the R. R. Co. also filed its separate answer, denying the allegations aforesaid, admitting that it was defendant in various suits presumed to be the same set forth in plaintiff's petition, but averring that it made no defense to said suits, but only permitted plaintiffs to defend the same in its name, at the instance and request, and for the exclusive use and benefit of the defendants Noland and Moore. That plaintifs, before said services were rendered, were advised by said R. R. Co., that it would not pay fees for the defense of said suits, and that such defense would only be permitted to be made by plaintiffs as the attorneys and for the use and benefit of their clients, Noland, and Moore.

To the answer last mentioned, a reply was filed, denying the allegations thereof.

On the hearing of the cause, a jury was impanelled, and the plaintiffs introduced and read in evidence a letter, dated October 17th, 1870, addressed to plaintiffs by the president and attorney of the R. R. Co., Shanklin, fully approving their action in signing appeal bonds,” in several cases against the Company in which Noland and Moore were interested;” stating that the necessary power of attorney, would be sent as soon as it could be signed by the Secretary, and requesting plaintiffs in the meantime to do all that they deemed necessary for the interest of the Co., as well as that of Noland and Moore.

Plaintiffs also read in evidence, a letter from the same party to them, two days later in date, acknowledging the receipt of a letter from them, addressed to Noland and Moore and said Shanklin, and replying to said letter by a promise to come down to Court and see plaintiffs in relation to the subject matters of the letter, that the writer presumed they, the plaintiffs, desired to be indemnified against liability, in consequence of having signed the bonds, &c., and that this was right.

Plaintiffs then offered in evidence a power of attorney, dated October 18th, 1870, duly executed by said R. R. Co., to plaintiffs, reciting that they had been previously authorized as the attorneys of said Co., in certain cases then pending before Esq. Gordon, against said Co.; and that in pursuance of such power, they had signed certain appeal bonds, and granting plaintiffs, “full powers and authority to further defend all suits now pending in any of the Courts of Chillicothe against said Co,” and “ratifying and confirming all acts and things which have been done, or may hereafter be done by said Turner & Collier, in respect to the defense of said causes or appeals thereon,” &c. The R. R. Co. objected to the reading of this instrument in evidence, on the ground that, according to plaintiff's own showing it bore date long subsequent to the rendition of the greater portion of the services for which suit was brought. This objection was overruled, said instrument read, and said Co. excepted.

Turner, one of the plaintiffs, testified that he was employed by Shanklin, the said president of the R. R. Co., by letter, and thereupon read said letter which was dated June 10th, 1870, and requested said Turner to assist him in all legal matters in which the said Co. was a party or had an interest, at Chillicothe and in Livingston County, to which said Shanklin could not attend, and stating that by the terms of this contract between the R. R. Co., and Noland & Moore, the latter were to save the former harmless from all liens for work and labor done, &c.

This letter further stated that the suits then pending before Esquire Gordon against the Co., were regarded as involving its credits, and that it desired the matters ventilated; more especially as Noland & Moore would pay the expenses, and concluded by requesting Turner to give those cases his personal attention with such assistance as Noland & Moore might choose to employ, &c.

Turner then proceeded to testify that the suits were commenced in 1870, were for wages for laborers on the C. & D. M. R. R., were brought against the R. R. Co., under the statute, to secure and enforce a lien on the road-bed of said Co.; that the suits mentioned in the exhibit to plaintiff's petition were before Esquire Gordon, Justice of the Peace; that Noland and Moore asked to be made parties defendant to those suits, claiming to be parties interested; that plaintiffs (Turner & Collier) accordingly procured the necessary order, making said N. & M. co-defendants, tried one or two of the cases (out of the thirty or forty in suit) were beaten, let the rest go by default; and then filed in such cases the necessary motions to set aside the judgment, affidavits and bonds for appeal--an Herculean task which occupied plaintiffs two or three days in accomplishing; that Gordon promised to grant the appeals; that subsequently Gordon raised some objection to the bonds; but having had them satisfactorily explained to him, promised to grant the appeals. That the justice, however, instead of doing this, subsequently issued executions on all these judgments, and the property of the R. R. Co. was levied upon and advertised for sale.

Plaintiffs then proposed to prove by the witness that they then brought suit in the Common Pleas Court of Livingston County to enjoin, and did enjoin the sales under such executions; but the R. R. Co. objected on the ground that such services were not alleged in the petition. This objection was overruled, said defendant excepted, and the testimony was admitted. And under a like objection of said defendant and wth the additional one that the necessity for such services was created by the blunder of plaintiffs, the witness was perm tted to testify that upon a change in constables the property was again advertised for sale, and plaintiffs again sued out an injunction from said Common Pleas Court, to prevent a sale of said property, and said defendant again excepted. Said Turner, also under like objection and exceptions of said defendant, testified that they the plaintiffs, sued out a mandamus to compel said Gordon, the justice of the peace to grant said appeals; that the first injunction suit, and the...