Young v. Emmke

• Decision Date: 03 April 1922
• Parties: P. P. YOUNG, Respondent, v. JOHN EMMKE, et al., Appellants
• Court: Kansas Court of Appeals

242 S.W. 161

210 Mo.App. 56

P. P. YOUNG, Respondent, v. JOHN EMMKE, et al., Appellants

Court of Appeals of Missouri, Kansas City

April 3, 1922

Appeal from the Circuit Court of Clay County.--Hon. Ralph Hughes Judge.

AFFIRMED.

Judgment affirmed.

Harris L. Moore for respondent.

Craven & Bates for appellant.

OPINION

BLAND, J.

--This is a suit upon a written contract executed on the 24th day of August, 1918. The contract recites that it was made between the "Elms Lake Resort Association and P. P. Young" and was to cover the proposed construction of a large dam on a farm in Ray County Missouri, near Excelsior Springs, owned by the defendant Elm Tree Inn Company. It provided that the work was to be begun not later than September 10, 1918, and completed as soon as possible. It employed plaintiff to superintend the construction of the dam and provided that for his services he should receive the sum of $ 50 per week and the further sum of ten per cent of the cost price of the material that entered into the construction except rock to be furnished under a "rock contract." The contract is signed by plaintiff and "Elms Lake Resort Association (By Geo. W. LaRue, Sect., Treas.)."

The first count of the petition alleges that the defendants under the style and name of Elms Lake Resort Association executed the contract above referred to, the contract being set out in full in this count; that defendant Elms Tree Inn Company was the owner of the land and that defendant John Emmke was president and in charge of the affairs of the company; that said defendants authorized and employed one George LaRue to enter into a contract for them for services in the construction of the improvement on the land and afterwards ratified and confirmed the contract entered into with plaintiff; that plaintiff began the work on the 7th day of September, 1918, and continued to carry it on under the terms of the contract until the 24th day of December, 1918, when defendants ordered the work stopped and refused to allow plaintiff to continue, although plaintiff was able, willing and offered to do so. This count asked damages in the sum of $ 450 for the failure of defendants to permit plaintiff to complete the work. The second count pleads the contract and the refusal to permit plaintiff to finish the work and that there was due plaintiff under the contract for services actually performed the sum of $ 1435.98. The third count pleads that plaintiff at the special instance and request of the defendants furnished them with the work of a man and a team of horses on the construction of the dam; that the reasonable value of the services of the man and team was $ 18.90 and asked judgment in that amount.

The answer of defendant, Elm Tree Inn Company, admits its incorporation and consists of a general denial and a counterclaim stating that it had been contemplating the construction of a lake on its property and desiring to have an expert capable of superintending its construction, employed plaintiff who represented himself as being an expert in the work contemplated; "that the work was commenced in pursuance of said contract under the superintendency of plaintiff" and that after the dam had been constructed to a certain height it broke and washed away under the pressure of water that had gathered in the lake; that the breaking loose and washing away of the dam was due to the carelessness and negligence of plaintiff in respect to certain matters therein stated, and asked judgment against plaintiff in the sum of $ 6,000 on account of damages sustained by it by reason of such carelessness and negligence. The answer of defendant Emmke consisted of a general denial and specific denials of the allegations of the petition.

At the close of plaintiff's testimony defendant offered separate demurrers to the evidence. The demurrer offered on behalf of defendant Emmke was given but the court overruled the peremptory instruction offered by the defendant, Elm Tree Inn Company. The defendant company offered no evidence and the case was submitted to the jury, resulting in a verdict in favor of said defendant on the first count and in favor of plaintiff on the second count in the sum of $ 1120, and on the third count in the sum of $ 18.60, and a verdict for plaintiff on said defendant's counterclaim. Defendant, Elm Inn Company, appealed.

The main contention of the present defendant is that its demurrer to the evidence should have been sustained because if any one was liable to plaintiff under the contract, it was LaRue and Emmke; that the contract was entered into by plaintiff and the "Elms Lake Resort Association" by LaRue as its secretary and treasurer, and as there was no such corporation or none thereafter formed, although it is claimed that it was the intention that said association was to be incorporated by Emmke and LaRue as incorporators, and as LaRue executed the contract on behalf of such proposed corporation and not on behalf of this defendant, and as neither he nor plaintiff contemplated, thought or intended that they in entering into a contract were binding this defendant, this defendant was not liable.

The facts show that plaintiff began the work shortly after the signing of the contract and that Emmke was the president and active manager of the defendant Elm Tree Inn Company, hereinafter referred to as the Inn Company; that the Inn Company owned a farm in Ray County, Missouri, and contemplated putting in a dam in order to make a lake in which to raise fish and for wild duck. Emmke was leaving for his vacation in Minnesota and left the matter of constructing the dike in the hands of LaRue, telling the latter that he wanted no correspondence about the matter as he was going for a rest; he told LaRue to go ahead with the improvements. Emmke testified that the instruction was "to go ahead and be done by the day's work;" that after he left LaRue wrote him that he was not "getting along very well;" that he had hired a superintendent. LaRue testified that the contract with plaintiff was his own idea and he sent Emmke a copy of the contract but Emmke testified that he did not receive it. Emmke testified that the Inn Company paid plaintiff at the end of each week as the work progressed; that it settled with plaintiff every week "as he brought in his time;" that it paid him for all except the last week; that it refused to pay him the ten per cent. He admitted that there was a balance due of $ 18.60 for the man and team. LaRue testified--

"Q. In the summer of August, 1918, did you understand them to have that work done for Mr. Emmke or the Elm Tree Inn Company? A. Yes, sir.

"Q. And was it left in your charge? A. Yes, sir."

He further testified that he signed the contract--

"Q. How did you happen to sign the contract? A. Because we were--we had decided to incorporate a company by that name, to do that work.

"Q. Who had? A. Mr. Emmke and myself and it was thought best to incorporate a company under some other name than the Elm Tree Inn, as it was a separate proposition, and I suggested that I would draw up papers and show him, which I did, in the meantime, that is, prepared and sent him as a preliminary step. Then the organization has never been completed."

La Rue testified that he mailed the corporation papers to Emmke but Emmke stated that he did not receive them. Nothing further was done toward the matter of incorporating the "Elms Lake Resort Association."

Plaintiff testified that he understood that he was contracting with Mr Emmke at the time of the execution of the contract; that some work was done upon the dam before he started the work. He testified that the latter part of October, 1918, a very heavy rain came and washed away a portion of the dam; that he called upon Mr. Emmke at the Elms Hotel and told him what had happened and that Emmke was provoked and said, "We'll think it over." About two weeks afterwards he again called on Emmke who told him to go ahead. Plaintiff then worked until about the 24th day of December when it started to freeze and LaRue and Emmke then decided to discontinue the work. In February, 1919, plaintiff again called on Emmke and the latter wanted plaintiff to finish the work "by contract." Plaintiff told Emmke that he desired to go ahead on his...