Webb v. Browning

• Decision Date: 31 March 1851
• Citation: 14 Mo. 354
• Parties: WEBB & HEPP v. BROWNING & BUSHNELL.
• Court: Missouri Supreme Court

14 Mo. 354

WEBB & HEPP

v.BROWNING & BUSHNELL.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

TODD & KRUM, for Respondents. 1. When a special parol contract is executed, for labor and services, suit, for the compensation, may be instituted in general indebitatus aesumpsit, and the agreement given in evidence to shew the compensation agreed to be paid. 2. The objection by the court to the question of the defendants put to the witness, Graves, about the meaning of the written contract given in evidence, was legal. Besides, no exception was taken thereto. 3. The instructions given by the court fully covered the case, both as to the law and the facts, and were right, and were as much protection to the rights of the appellants as the facts in the case authorized.

RYLAND, J.

The appellees, Browning and Bushnell, partners, doing business under the name and style of Browning & Bushnell, brought their action of assumpsit against the defendants, Alexander F. W. Webb and Edward Hepp, partners trading under the name of A. F. W. Webb & Co., in the St. Louis Court of Common Pleas at the September term, 1849. The defendant below appeared and plead the statutory general issue. The plaintiff's declaration contained the common counts for work and labor, care and diligence, and for money had and received, and for money laid out and expended, &c. On motion the plaintiffs were ruled to file a bill of particulars of the demand, which contained the following items:

“1848, for professional services as your attorneys in the Circuit Court of Hancock county, Illinois, $20 00.

To professional services as your attorneys in your suit against Thos. Biddison and Benjamin Cobb, in the Circuit Court for the United State in Illinois, $130 00.”

At February term, 1850, a trial was had and a verdict was found for plaintiffs for one hundred and fifty-eight dollars and twenty-five cents. Judgment was rendered thereon for plaintiffs. The defendants below filed their motion for a new trial, which was overruled, excepted to and the defendants bring the case here by appeal.

It appears from the bill of exceptions that W. H. Graves, an agent for the defendants, who was traveling and doing business for them in Illinois, and who was engaged in selling goods for defendants, sold some goods in Illinois to the customers of the defendants, without first having obtained a license for that purpose; therefore the goods of the defendants in the possession of said Graves were seized and taken from him and he was arrested. This witness, Graves, had employed the plaintiffs to attend to suit for the defendants, Webb & Hepp, in Hancock Circuit Court, in Illinois, nothing was said about the fee, until after the services were rendered and performed; the plaintiffs then said the fee was fifty dollars; witness thought the fee reasonable, as the plaintiffs labored hard in the case.

Witness also employed plaintiffs to sue for the goods taken from him when he was arrested, and produced a written contract, as follows: “Alexander F. W. Webb and Edward Hepp, trading and doing business under the name, style and description of A. F. W. Webb & Co. against Thomas Biddison and Benjamin Cobb. Trespass: in the District Court of the United States for the district of Illinois. We have employed Messrs. Browning & Bushnell to prosecute the above suit for us, until it is finally disposed of in said court, for which we are to pay them one hundred and thirty dollars. Messrs. Browning & Bushnell are also to engage the services of S. T. Logan, Esq., of Springfield, to assist them in the case.

A. F. W. WEBB & Co.

Feb. 9th, 1848.

By WM. GRAVES, Agent.”

The defendants objected to this writing being read in evidence to the jury; objection was overruled and the writing read in evidence. It also appears that the plaintiffs employed Mr. S. T. Logan as agreed by them; that they brought the suit and had it prepared for trial, when it was dismissed by the order of the plaintiffs, they having compromised it, having obtained their goods.

There also appears testimony showing the reasonableness of the above charges. It was also in proof that the agent, Graves, had no written authority to make contracts in the name of his principals; but he had often done so for them, and they had sanctioned it. And in this case the agent said he informed the defendant, Hepp, of what ...