Wagner v. Edison Electric Illuminating Co.

• Decision Date: 20 July 1909
• Citation: 141 Mo. App. 51,121 S.W. 329
• Parties: WAGNER v. EDISON ELECTRIC ILLUMINATING CO. OF CARONDELET.
• Court: Missouri Court of Appeals

121 S.W. 329

141 Mo. App. 51

WAGNER v. EDISON ELECTRIC ILLUMINATING CO. OF CARONDELET.

St. Louis Court of Appeals. Missouri.

July 20, 1909.

WORK AND LABOR (§ 30) — RIGHT OF RECOVERY — INSTRUCTIONS.

Plaintiff, representing certain electric companies, and other persons, representing other companies, organized a joint conduit committee to construct conduits for their wires, of which plaintiff was elected chairman. The committee appointed plaintiff engineer to supervise the underground work. In an action against defendant, one of the companies other than those which plaintiff represented in the organization of the committee, for its proportional part of the value of his services as such supervising engineer, the court instructed that, though plaintiff may have intended, when he was selected as such engineer, to charge defendant for such services as he might render it, yet if he did not disclose said intention to defendant at or before his selection, and defendant did not then know, or have reason to believe "from the committee's employment of him as engineer," that it was expected to pay him, and did not intend to pay him for such services, and defendant notified him, as soon as it learned that he intended to charge for said services, that it did not intend to pay him, he could not recover. Held, that the instruction, so far as it touched on the subject of constructive contract, was erroneous in authorizing a finding for defendant if it did not know, or have reason to believe from the committee's employment of plaintiff, that it was expected to pay him, and in not authorizing a finding for plaintiff if the character of the services and the circumstances attending the employment were such as to lead a reasonable person to believe that compensation would be expected from him therefor, though plaintiff by reason of his position as chairman of the committee owed duties to defendant, making the presumption otherwise than though the services were rendered to a stranger.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Herbert A. Wagner against the Edison Electric Illuminating Company of Carondelet. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

This is a suit quantum meruit, in which plaintiff seeks to recover the reasonable value of his services as engineer, rendered the defendant in supervising the construction of a conduit in the city of St. Louis. Upon a trial before a jury the finding and judgment were for defendant, and the plaintiff appeals. The facts out of which the controversy arises are highly complicated, and require an extended statement. The counsel for respondent concede the statement of facts as prepared and printed by appellant's counsel in the briefs to be entirely fair and just. Upon investigating the case, we believe no more accurate statement thereof can be made than that referred to. We, therefore, adopt appellant's statement of facts, as follows:

"Ordinance No. 18,680 of the city of St. Louis, known as the `Keyes' ordinance, required that all the electric lighting and power companies doing business within the district bounded by the river and Twenty-Second street, Wash and Spruce streets, to bury their wires underground, and forbids the use of poles, etc., above ground within said territory after December 31, 1898. This ordinance provided for certain privileges to persons and companies complying with its terms, and the defendant and the several companies hereinafter named qualified under the ordinance. The general plan of construction contemplated by the ordinance was for conduits, through which passed ducts, or pipes to be built under the surface of the city streets, under the superintending control, as to location, etc., of the board of public improvements. Where the plans presented by different companies to the board of public improvements contemplated a use by all of the same streets or alleys, the board had the power to compel the applicants to build and maintain joint conduits, with the right, if the companies disagreed, to apportion the cost. Under a contract dated April 17, 1897, providing for the joint construction of underground conduits, as required by the Keyes ordinance, and entered into between the following companies and the National Conduit Company of St. Louis, viz.: The Missouri Electric Light & Power Company, the St. Louis Electric Light & Power Company, the Phœnix Light, Heat & Power Co., and the Edison Electric Illuminating Company of Carondelet — it was provided, among other things, for the formation of a construction committee to be composed of one representative of each of the above companies. In accordance with said provision the following gentlemen met by appointment at the office of the Laclede Gaslight Company, on April 30th, at 3 o'clock p. m.: Herbert A. Wagner, the plaintiff herein, representing the Missouri Electric Light & Power Company; D. W. Guernsey, representing the St. Louis Electric Light & Power Company; A. Ross, representing the Phœnix Light, Heat & Power Company; E. V. Matlack, representing the Edison Electric Illuminating Company of Carondelet, the defendant herein — and, having shown that they were duly authorized to represent their respective companies, organized by electing Mr. Wagner chairman, and Mr. Ross secretary of the committee. This committee was known as `The Joint Conduit Construction Committee.' One of the rules adopted by this joint conduit construction committee provided that no motion should be carried unless it received three votes in the affirmative. At a meeting of this committee, held on May 7, 1897, Mr. Ross moved that Mr. Wagner, the plaintiff, be appointed engineer to supervise the underground work, as provided in the contract entered into on April 17, 1897, between the National Conduit Company of St. Louis and the companies represented on the committee. The motion was seconded by Mr. Guernsey. All voted aye except Mr. Matlack, the secretary of the defendant, who voted no. Mr. Wagner was declared duly appointed engineer.

"In the meeting of the joint conduit construction committee held on May 8, 1897, a motion providing for the appointment of a subcommittee to report upon a plan of defining the duties of the engineer was passed. Mr. Guernsey, temporary chairman, appointed Matlack, Wagner, and Ross. Wagner and Ross submitted a majority report, and Matlack submitted a minority report at the same meeting at which they were appointed. On May 11, 1897, the subcommittee withdrew the majority and minority reports, and presented the following report: `St. Louis, May 11, 1897. The engineer shall provide all plans and submit same for the approval of the committee, may obtain all necessary permits from the board of public improvements after acceptance by the companies of the finding of the board and shall make requisition upon the other companies for their proportion of the deposit to be made with the city and for their proportion of the cost of preparing plans. He shall have general supervision of the work as provided in the contract entered into April 17, 1897; he shall make a detailed weekly report in triplicate to the committee which shall show the amount of joint work accomplished; he shall consult freely with the engineers of the companies and all disputes between them shall be referred to the committee for adjustment. He shall certify all contractors bills in ample time for the committee to draw same for payment as provided in the contract; each company shall appoint, subject to the approval of the committee, its pro rata of inspectors or draftsmen as may be required for the general engineering force, who may be removed upon complaint of the engineer and the action of the committee. Each company shall pay its inspectors, but they shall be subject to the direction of the engineer. The pro rata of inspectors, etc., to be furnished by each company shall be approximately as follows: The Missouri Electric Light & Power Company, seven-twelfths; Phœnix Light, Heat & Power Company, two-twelfths; Edison Illuminating Company of Carondelet, two-twelfths, and this proportion may be changed by the action of the committee should it be deemed advisable. Herbert A. Wagner. E. V. Matlack. A. Ross.' This report was unanimously adopted.

"On motion of Mr. Matlack, made in a meeting of the joint conduit construction committee held May 11, 1897, the following letter was sent to the board of public improvements, and by it received in due course: `St. Louis, Mo., May 11, 1897. To the Honorable Board of Public Improvements of the City of St. Louis — Gentlemen: The undersigned companies have appointed Mr. Herbert A. Wagner, engineer, for the construction of their conduits under authority of Ordinance No. 18,680. You will please deliver permits for conduits to him or his order. Very respectfully, Missouri Electric Light & Power Co., Edison Illuminating Co. of St. Louis, The Electric Light, Power & Conduit Co., S. P. Pike, Secretary. Phœnix Light, Heat & Power Co., A. Ross, President. Edison Electric Illuminating Company of Carondelet, E. V. Matlack, Secretary. St. Louis Electric Light & Power Co., E. W. Guernsey, President.'

"The contract heretofore mentioned, and entered into on the 17th day of April, 1897, between the National Conduit Company of St. Louis, the National Conduit & Cable Company, and the Abbott-Gamble Contracting Company, as contractors, and the Missouri Electric Light & Power Company, the Phœnix Light, Heat & Power Company, the St. Louis Electric Light & Power Company, and the Edison Electric Illuminating Company of Carondelet, provided that all disputes between the parties to the contract should be referred to the joint conduit construction committee, and the committee's decision was to be final. The contract also provided that many questions regarding the policy to be followed in laying and constructing the conduits and material to be used therein, the way in which it was to be used, and...