Roberts v. Southern Surety Co.

The opinion of the court was delivered by Burch, J.: The action was one by an attorney for compensation ior his services. The defense was that he had not been employed. The plaintiff recovered and the defendant appeals. The plaintiff was a director of and attorney for the Stock Yards State Bank of Wichita. The cashier of the bank defaulted. The defendant was surety on the cashier’s fidelity bond to the bank. The defendant sent agents to Wichita to negotiate with the plaintiff respecting the defendant’s liability on its bond. The defendant finally denied liability with respect to all items except one of $3500, for which it was conceived the Merchants State Bank of Wichita was liable to the Stock Yards State Bank. If the Merchants State Bank could be made to pay, the defendant would not need to do so. The- Stock Yards State Bank did not care to incur the trouble and expense of a suit against the Merchants State Bank because it held the defendant’s bond. Consequently the defendant’s agent authorized the plaintiff to bring suit against the Merchants State Bank for the defendant’s benefit, but in the name of the Stock Yards State Bank. On the strength of this authorization the plaintiff instituted the suit and conducted it to final [376] judgment. At the trial of the present action the defendant denied authority of its agent to employ the plaintiff to bring suit against the Merchants State Bank for the defendant’s benefit, but it so happened that shortly after the suit was commenced an agent, whose authority could not be denied, requested the plaintiff in writing to institute the suit at once. The jury found specially that the suit was brought at the request of and in the interest of the defendant, but in the name of the Stock Yards State Bank, and that the plaintiff represented the defendant as its attorney in that suit. The controversy is closed by the special findings of the jury, which were sustained by ample evidence. The ghost of variance between pleading and proof rises from the tomb to which variance was consigned by sections 134 and 135 of the civil code, and points its spectral finger at the unbridgeable chasm lying between compensation dependent on contract express and compensation’dependent on contract implied. The plaintiff pleaded that he was employed, and that it was understood he was to be paid — enough to advise the defendant what the suit was about. Under this pleading he was át liberty to prove any kind of contract. If, however, an express contract had been specifically pleaded, and an implied contract had been proved, he could still recover. After judgment following a trial at which the variant issue has been fairly determined, this court authorizes or treats as made whatever amendments are necessary to make pleading and proof conform. The instructions relating to recovery when there has been no express contract are criticized, the rule stated in 2 Mechem on Agency, second edition, section 2230, being taken as a guide : “Thé mere fact that the alleged client received the benefit of the service is not enough to make him liable, but the service must have been rendered on his account and at his express or implied request.” (p. 1807.) The special findings bring the case within this statement of the rule. As a matter of fact, the instructions fairly presented the law governing the subj ect, but if they were erroneous this court could apply the correct doctrine to the facts found. . Other assignments of error are without substantial merit, and the. judgment of the district court is affirmed.