Wagner v. Edison Electric Illuminating Co.

• Decision Date: 03 July 1903
• Citation: 177 Mo. 44,75 S.W. 966
• Parties: WAGNER v. EDISON ELECTRIC ILLUMINATING CO. OF CARONDELET.
• Court: Missouri Supreme Court

75 S.W. 966

177 Mo. 44

WAGNER v. EDISON ELECTRIC ILLUMINATING CO. OF CARONDELET.

Supreme Court of Missouri.

July 3, 1903.

CONTRACT OF SERVICE — IMPLIED COMPENSATION — INTENTION — QUANTUM MERUIT — APPORTIONABLE CONTRACT — RECOVERY.

1. In complying with an ordinance requiring that all electric wires in a certain district be placed under ground, several electric companies acted jointly through a committee. This committee elected one of its members as engineer for the work. Held that, though the engineer was a member of the construction committee, he could recover on the quantum meruit for services rendered as supervising engineer.

2. A committee representing several electric companies, in supervising the work of placing wires underground, elected one of its members to act as engineer. The action of the committee was binding on all the companies, and the engineer could not be discharged except by a majority vote of the committee. There was no agreement as to the compensation the engineer was to receive, but the contractor was to receive monthly payments on estimates furnished by the engineer. Held that, as the benefits accrued with the progress of the work, it will be presumed that the compensation was to be paid from time to time, and hence the contract was apportionable, and the engineer entitled to recover for services rendered during the progress of the work and before its completion.

3. The engineer was not entitled to recover for services rendered unless both he and the defendant company had understood, or ought to have understood, that he was to be paid for his services, judging from what reasonable persons under like conditions would have understood.

Robinson, C. J., and Gantt, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by Herbert A. Wagner against the Edison Electric Illuminating Company of Carondelet to recover for services. Judgment for plaintiff affirmed by the St. Louis Court of Appeals (82 Mo. App. 287), and case certified to the Supreme Court. Reversed.

Judson & Green, for appellant. Morton Jourdan, for respondent.

BRACE, J.

This case is certified here from the St. Louis Court of Appeals, upon the dissent of one of the judges of that court to the decision of a majority thereof, in an opinion by Bland, P. J., reported in 82 Mo. App. 287. A copy of that opinion, affirming the judgment of the circuit court in favor of the plaintiff, without additional argument or brief, is filed by his counsel in support of that judgment, and may be taken for the statement of the case. It is as follows:

"In 1896 the municipal assembly of the city of St. Louis passed Ordinance No. 18,680 (known as the `Keyes Ordinance'), which required electric light and power companies doing business within the district bounded by the river and Twenty-Second street, Wash and Spruce streets, to bury their wires under ground, and forbidding the use of poles, etc., above ground within the designated territory after December 31, 1898. The ordinance provided certain privileges to persons and corporations complying with its terms. The defendant, the Phœnix Light, Heat & Power Company, the Missouri Electric Light & Power Company, and the St. Louis Electric Light & Power Company qualified under the ordinance, and presented to the board of public improvements of the city their several plans for construction of underground conduits. These plans were located in many instances on the same streets and alleys in the district, for which the several companies were compelled to construct jointly, by order of the board of public improvements, in the exercise of a power delegated to it by the ordinance. The above-mentioned companies on April 17, 1897, entered into a single but several contract with the National Conduit Construction Company of St. Louis and two other construction companies for the underground conduits to be used by them jointly. This contract provided for a construction committee of four members, one to be selected from each of the four companies, to which all disputes between the said companies and the construction companies should be referred for final decision. No engineer was named in this contract for these several companies, yet the contract in numerous places refers to one, and certain powers are given him with respect to supervision and approval of the work, showing that the appointment of such an engineer was contemplated by all the parties to the contract. The conduits are roughly described in the evidence as similar to a large gun barrel with numerous circular spaces extending its entire length with the ducts of each company, varying in number according to its needs, but made inseparable from the ducts of the other companies, so that the ducts of one could not be removed without removing all; so that the surveys, plans, supervision permits, and all that appertained to the construction of the conduits, was both the joint and individual undertaking of the four companies. The committee provided for in the contract was made up of E. V. Matlack, representing the defendant, A. Ross, representing the Phœnix Company, D. W. Guernsey, representing the St. Louis Company, and plaintiff, representing the Missouri Company. On April 30, 1897, the committee organized by electing Wagner chairman, and Ross secretary, and adopted rules for the conduct of its proceedings, among which was one providing that no motion could be carried unless it received three votes in the affirmative. On May 7, 1897, Mr. Ross moved that Wagner be appointed engineer to supervise the underground work as provided for in the contract of April 17, 1897. The motion was seconded by Guernsey. On vote being taken, all voted aye, except Mr. Matlack, who voted no, and Wagner was declared duly appointed engineer. Mr. Wagner appointed the other gentlemen of the committee a committee of three to outline and define the duties of the engineer. A majority and minority report was made; the majority report was adopted by the full committee, Matlack voting in the negative. Briefly stated, the majority report, as adopted, required the engineer to provide all plans for construction, to secure permits therefor from the board of public improvements, and to have general supervision over the work provided for in the contract of April 17, 1897. The committee, in behalf of the several companies in interest, then gave to the board of public improvements the following notice:

                        "`St. Louis, Mo., May 11th, 1897
                

"`To the Hon. 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. B. Pike, Secretary. The Phœnix Light, Heat & Power Co., A. Ross, President. The Edison Illuminating Co. of Carondelet, E. V. Matlack, Secretary. St. Louis Electric Light & Power Co., D. W. Guernsey, President.'

"Each block of street where it was planned to construct the conduit was obstructed by underground gas and water pipes, and in some instances by sewers; these it was necessary to go over or under without disturbing them, hence great care was required, and a study of the city records as to location of these obstructions and the preparation of maps and drawings showing their location, depth, etc., was necessary. All this was done under the supervision of Wagner, and a special preliminary plan of each block was made and furnished to each company. From these preliminary plans final plans were prepared by Wagner acceptable to all the companies, and then submitted to the board of public improvements for the purpose of getting permits for the construction of the conduit. Of this work about 20 plans were prepared for each block; to prepare them required the work of four or five draftsmen for a year; all the measurements were taken by Wagner, or by an engineer acting under him, and a record made of them; monthly estimates of the work was made by or under his (Wagner's) supervision, and submitted to the construction committee, on which monthly payments to the contractor were made; a large number of inspectors were employed to watch the contractor; these reported to Wagner, and were assigned to duty by him, and all orders to the contractor came from Wagner. An office force of clerks, draftsmen, and inspectors, and a force of under engineers, were furnished by the respective companies, but all acted as a unit, and worked under the order and control of Wagner, as engineer in chief. The labor was not only great, but also, as to the work of the engineer, it had to be skillful and exact to meet the requirements of the ordinance, and to leave undisturbed the existing underground obstructions. The responsibility for plans, measurements, and successful construction were all on Wagner, as engineer in chief, and he supervised and directed all. The work of construction as it progressed was, on the estimate and certificate of Wagner, when approved by the construction committee, paid by the respective companies, pro rata, as follows: Missouri Company, 7/12; Phœnix, 2/12; defendant, 3/12. A short time after the formation of the construction committee, the St. Louis Company was absorbed by the Missouri Company, but Mr. Guernsey continued on the committee, and acted thereon in the interest of the Missouri Company. At the time the construction committee was formed, Wagner was general superintendent and engineer of the Missouri Company and the Edison of St. Louis, receiving per month $250 and $200, respectively, for his services, which salaries he continued to receive during joint construction of the underground conduit. He made no special charges against these companies for extra services as...