St. Louis, Fort Scott & Wichita Railroad v. Grove

[734] The opinion of the court was delivered by Horton, C. J.: This was an action brought by J. Paul Grove against the St. Louis, Fort Scott & Wichita Kailroad Company to recover $400, the value of his services as an attorney, in being retained and in attending to sixteen condemnation cases which were at one time pending in the district court of Harper county. The railroad company answered by a general denial to the petition. A large part of the brief of the attorneys for the railroad company discusses alleged errors of the court in rejecting and admitting testimony, and in instructing the jury. The railroad company did not urge in its motion for a new trial as a reason for setting aside the verdict, the rejection or admission of testimony; consequently that error, if any, was waived. (Nesbit v. Hines, 17 Kas. 316; Decker v. House, 30 id. 614.) Again, the railroad company failed to take any exceptions to the instructions given, and thereby waived all errors of law, if any, therein. (City of Wyandotte v. Noble, 8 Kas. 445; Jarrett v. Apple, 31 id. 693.) We have read the record, and find there is sufficient evidence to sustain the verdict and judgment. Grove testified, among other things, that he had been a practicing attorney in Harper county for over eight years; that .in November or December, 1884, after the commissioners had been appointed to condemn the right-of-way for the railroad company, he was retained and employed by I. B. Forbes, the right-of-way agent of the company, to assist in the condemnation cases for the company; that he was employed by Forbes in each of the cases likely to arise in the condemnation proceedings in the county from the northeast line of the county, and nothing was said to him about the price; that he agreed with Forbes he would act for the company; that he did so act, and subsequently performed all the services requested, and those services were reasonably worth $25 in each case; that there were sixteen cases in all; that Forbes told him he had been [735] authorized by Miller, the vice president of the company, to retain and employ him. R. B. Shepard testified, among other things, that he was the local attorney for the railroad company for Harper county, and that he understood that Grove was to be employed also. I. B. Forbes testified, among other things, that he. resided in Anthony, in Harper county; that he was employed as right-of-way agent for the railroad company in June, 1884, and continued in the service of the railroad company for eighteen months; that he suggested to Woods, the civil engineer of the railroad company, and Miller, the vice president of the company, that “ it would be better to retain Grove, and also Shepard;” that Woods said to Miller, “We had better let Forbes do what he thinks best about it;” and Miller said “All right; Forbes can do whatever he thinks is best for the company, that if he thinks it is to the best interests of the company to retain Grove, he can do so;” that subsequently he came down and retained Grove to look after the condemnation proceedings. Forbes also testified that Miller was the general manager of the railroad company, in addition to being its vice president. As the general manager of a railroad company has full control of all the company’s affairs, and complete direction over its treasury, we must assume that Miller had authority to employ Grove, or direct Forbes to employ him. (A. & P. Rld. Co. v. Reisner, 18 Kas. 458; A. & N. Rld. Co. v. Reecher, 24 id. 228.) This leaves for our consideration only the two instructions which were asked by the railroad company and refused by the court. The first instruction refused was substantially given by the court in its general instruction. The other instruction was properly refused, because no payment or settlement was alleged in the answer. In this case, the facts constituting the plaintiff’s claim were fully stated; and therefore it falls within the decision of Stevens v. Thompson, 5 Kas. 305. In that case it was decided, “When the petition states facts constituting the plaintiff’s [736] claim, a general denial does not present an issue authorizing the defendant to make proof of payment.” The judgment of the district court must be affirmed. All the Justices concurring.