Mussey v. Vanstone

GTLL, J. This is an action in two counts. In the first, plaintiff alleges that he was employed, by defendant to institute and prosecute as an attorney two suits in the circuit court of Jackson county, and that his services were reasonably worth tire sum of $150. The second count is for the recovery of $1080, being á balance due for advanced costs in said two suits, paid by plaintiff at defendant’s request. The answer is first a general denial, and secondly, -as a further answer, defendant says, “that on or about the 3d day of August, 1893, he entered into a written contract with the Bristol Mercantile Agency, a corporation located in the city of Chicago, state of Illinois, whereby said agency, for and in consideration of $30 to it paid by defendant, agreed to endeavor to make collections for defendant anywhere in the United States or Canada, of any claims that might be put in its hands, upon the rates and terms that if no collection was [355] made no charge would be made, and that it would only charge a certain stated per cent on the collections that were made. That under this contract he sent the notes and accounts mentioned in plaintiff’s petition to said agency for collection, and the said agency forwarded the same to the plaintiff in Kansas City as its agent or attorney, .and the plaintiff as its agent or attorney for the Bristol Mercantile Agency brought the suits mentioned in his petition 'against the said Nancy B'ainbridge et al., and recovered .two judgments upon which executions were issued, levies made and certain real estate sold, hut the property only brought a nominal sum. That under defendant’s contract with the Bristol Mercantile Agency it was not entitled to any pay for its services for attorneys’ fees or otherwise. The plaintiff in bringing the suits was not acting as attorney for defendant, but was attorney for the Bristol Mercantile Agency and the defendant owes him nothing.” The reply was a general denial of the new matter set np in the answer. The issues were tried by the court, sitting as a jury, resulting in a finding and judgment for plaintiff, and defendant appealed. I. The principal complaint relates to the court’s action in refusing the following declaration of law ashed by defendant: “If the court sitting as a jury believe from the evidence that defendant Yanstone, entered into a written contract with the Bristol Mercantile Agency whereby said Agency contracted and agreed to endeavor to collect such claims as defendants might put into their hands, anywhere in the United States or Canada for a certain per cent named in said contract, and that said Yanstone forwarded the notes and accounts mentioned by plaintiff in his petition, to such agency for collection under said agreement, and that said notes and accounts were sent by said agency to the plaintiff as its attorney, 'and that the plaintiff undertook to collect said notes and accounts as attorney for such agency and brought the suits mentioned [356] by him as the employee of such agency, then he can not recover in this suit against this defendant.” The refusal of this declaration of law was manifest error. It was clearly within range of the answer, and there was abundant evidence tending to prove the facts therein recited. The main issue was, whether or not plaintiff 'took charge of the collections and instituted the suits in Jackson county under a direct employment by the defendant, or whether in so doing the plaintiff was acting as a mere sub-agent, attorney or employee of the Bristol Mercantile Agency with whom the defendant had a contract for the collection of the claims. If the latter hypothesis was the true one then the defendant was bound to respond to the Bristol Agency and not to plaintiff, its servant and employee. Hill v. Morris, 15 Mo. App. 322, and cases cited. The court however seems to have treated this as an immaterial matter 'and that it made no difference whether plaintiff, in making the collections and conducting the suits against the Kansas City parties, was so doing as the employee or attorney of defendant or of the Mercantile Agency. II. The defendant was entitled to have the trial judge declare the theory of law upon which he decided the case, and his rulings on declarations of law are subject to review in 'the appellate court. Butler Co. v. Bank, 143 Mo. 13. The judgment must be reversed and cause remanded. All concur.