Wagner v. Edison Electric Illuminating Co.

NOETONI, J. (after stating the facts. — Among others, the court gave the following instruction on behalf of the defendant: “The court instructs the jury that although they believe from the evidence that plaintiff may have intended at the time he was selected as supervising engineer to charge defendant for such services as he might render it, yet if the jury further believe from the evidence that he did not disclose said intention to this defendant at the time or before his selection by the committee as engineer, and the defendant did not then know or have reason to believe from the committee’s employment of him as engineer that it was expected to pay him and did not intend to pay him for such services and that defendant notified plaintiff that it did not intend to pay — 67 — him for said services as soon as it learned that plaintiff intended to charge therefor, plaintiff .is not entitled to recover.” The jury having found the issues for defandant, plaintiff prosecutes the appeal, and assigns the giving of this instruction as the only error complained of. The evidence shows that plaintiff was appointed as engineer by the committee on joint conduit construction. That this appointment originally made by the committee was subsequently ratified or confirmed by the defendant company is obvious from the letters here-inbefore set out and other uncontroverted facts in proof. However this may be, throughout the case the defendant has insisted that the plaintiff did not intend to charge it for his services; that although plaintiff’s services were to be compensated by the two companies he represented, they were gratis to this defendant. Defendant’s theory of the case is that as plaintiff was in the employ of two other companies and represented them on the committee for joint conduit construction, he merely performed such services as were incident to that employment by the two companies which he represented, and that therefore he is not entitled to recover from the present defendant any more than Hr. Matlack, the' representative of this defendant on the joint committee, would be entitled to recover from the other companies for his services rendered in that behalf. The instruction referred to submitted to the jury that although they found from the evidence plaintiff may have intended to charge for his services at the time of his selection by the committee, yet if it also found that plaintiff had not disclosed his intention to charge to this defendant, and the defendant did not know, or have reason to believe, from the committee’s employment of him that it was expected/ to pay, and further found that defendant in fact did not intend to pay for his services, and that it notified plaintiff of such inten — 68 — tion on its part, as soon as it discovered be intended to charge, then plaintiff should not recover. The first criticism leveled by the plaintiff against this instruction is that it authorized the jury to find the issues for defendant if it did not know, or have reason to believe, from the committee’s employment of plaintiff as engineer, that it was expected to pay for such services. It is argued, although defendant may not have known from the committee’s employment of the plaintiff an engineer that it was expected to pay him for his services, nevertheless plaintiff is prima facie entitled to a verdict on that score, if, by looking to all of the facts and circumstances of. the case and the amount and character of the services rendered, the defendant, as a reasonable person, should have known that it was expected to pay therefor. That is, by looking at the character of the services rendered by the plaintiff, defendant might have known that such services were not those incident to plaintiff’s office as a member of the committee alone, and were of such a character that a reasonable person who receives the benefit thereof, would expect to be called upon to compensate. There can be no doubt the instruction pointing the jury to what the defendant knew, or had reason to believe alone from the committee’s employment of plaintiff as engineer, was inaccurate, for the reason the defendant’s conduct in respect of this matter, should be determined rather by reference to the character of the services rendered than to the mere fact of appointment by the committee to perform the services. This for the reason that in respect of such matters, the law presumes certain services are to be furnished gratis; that is, as an officer of the joint committee on conduit construction, plaintiff owed to defendant as well as to all the other companies who were parties to the arrangement, certain services free of charge, for they were all acting together. In respect of these matters, each company furnished a man on the joint committee. The — 69 — services of the several members of the joint committee were furnished to all of the companies in consideration of the services of every other member of the committee. Therefore this defendant had the right to expect the services of plaintiff on the joint committee to be performed gratis to it as a recompense for the services of its agent, Mr. Matlack, on the same committee. However, this may not be true in respect of those more arduous services performed by plaintiff, which were different and distinct from those of a member of the joint committee. If the character and amount of those services were such as to lead a reasonable person to believe they were not being performed gratis and that compensation would he expected therefor, then the law will imply a promise to pay the reasonable value of the service rendered. The question should be determined by reference to the character and amount of the service rather than from the mere employment of plaintiff by the committee and in this respect, the instruction-was inaccurate. It is said the instruction is erroneous for the further reason that it required the jury to find, among other things, either that the defendant intended to pay plaintiff or that the services rendered by him were of such a character that defendant should have had reason to believe that it was expected to pay for them. The argument advanced is that if the plaintiff performed valuable services for the defendant and intended at the time to charge therefor, defendánt having voluntarily accepted the same, the law implies a promise on the part of the defendant to pay the reasonable value thereof; and this, too, notwithstanding the matter of its intention in that behalf. Now, Sir William Blacks tone, in speaking of this matter generally, says the law implies a promise in such circumstances to pay and raises a presumption which proceeds from reason and justice to that end. “And if I employ a person to do any business for me, or perform any work; the law — 70 — implies that I undertook, or contracted to pay him as much as his labor deserved. If I take up wares from a tradesman without any agreement on prices, the law concludes that I contracted to pay their real value.” [2 Blackstone’s Comm., 443.] The rule just quoted from Blackstone is that which obtains between strangers. That is, where no relation exists affording a presumption to the contrary. Of course there can be no actual contract in any case except there be present the intention of both parties. That is to say, there must be a mutual meeting of the minds, in order to constitute an actual contract. Therefore, on principle, a contract which the law implies is one which the parties have not made; for if they have made an actual contract, by each intending and agreeing upon the same proposition, there is no room for implication by the law. [Weinsberg v. St. Louis Cordage Company, 135 Mo. App. 553, 116 S. W. 461; Hertzog, v. Hertzog, 29 Pa. St. 465; 7 Amer. and Eng. Ency. Law (2 Ed.), 91, 92; Fitzpatrick v. Dooley, 112 Mo. App. 165.] Now one person may render valuable services to another, intending at the time to charge therefor. The other person, for whom the services are rendered, may accept them and at the same time intend not to pay. Of course, in such circumstances, there is no actual contract between the parties for the reason there is a want of mutual intention. However the law will presume in those circumstances, between strangers, that the person receiving the services shall pay the reasonable value thereof. This presumption is dictated, of course, by reason and natural justice. Such is an appropriate and typical case of a contract implied by law for the sake of the remedy it affords. [Weinsberg v. Cordage Co., 135 Mo. App. 553, 116 S. W. 461.] The presumption afforded by the law under such circumstances obtains only between strangers, however; that is to say, it is not present in those cases where the peculiar relations of the parties are sufficient to dictate that in. accordance with the principles — 71 — of reason and justice, the presumption should be otherwise. [1 Beach, Modern Law of Contracts, sec. 650; Smith v. Meyers, 19 Mo. 434; Fitzpatrick v. Dooley, 112 Mo. App. 165.] When the relationship of the- parties is such as to lead a reasonable person to believe the services are performed gratis, then the presumption is that they are not to be paid for and the burden rests with the party asserting the claim to overcome the presumption. For instance, in the family relation, the services rendered by a child to the parent are presumed, on account of the ties of filial affection, etc., to have been rendered gratis. And although the services were requested and received by the parent and of great value, the presumption of law obtains to the effect that no recompense is to be made therefor. The presumption, of course, is disputable, and may be overcome by a showing of fact to the contrary. [Fitzpatrick v. Dooley, 112 Mo. App. 165; Smith v. Meyers, 19 Mo. 434; Cowell v. Roberts, 79 Mo. 218; 1 Beach, Modern Law of Contracts, sec. 653.] The principle is not confined to the family relation. It finds appropriate application as well in all cases where the relations of the parties are sufficient, according to the experience and customs of men, to invoke its influence as a result of reason and natural justice. For instance, the officers of incorporated companies, such as bank presidents and cashiers, are expected, of course, to perform all necessary services to the bank, incident to the office they hold in consideration of the salary they receive for executing such offices. In view of this relation, the law presumes generally that all services performed by such officers are performed by them in the capacity and as within the duties of the particular office they occupy. [Sawyer v. Pawners’ Bank, 6 Allen (Mass.) 207; Taussig v. Railway, 166 Mo. 28; Pfieffer v. Sandberg Brake Co., 44 Mo. App. 59.] Now in view of this presumption, which attends the services rendered to an institution by one who is an officer thereof, it is not sufficient for such of72 fleer to show merely that be preformed valuable services other than those pertaining to his particular office at the request of the defendant, and that he intended to charge therefor at the time, and the defendant received the services; for the law presumes such services are rendered gratuitously, or at most, for the same compensation received in respect of his particular office; and the defendant has the right to rely upon such presumption unless plaintiff shows more. That is to say, in such circumstances it is incumbent on the plaintiff to show not only that he intended to charge, but he must show as well a statei of facts which will overcome the presumption referred to and sufficient to lead a reasonable person to believe that he would be expected to pay for the services. Although upon such a showing the court or jury may not be authorized to find that defendant actually intended to pay, it may find that the party thus receiving the benefit is estopped to deny that he intended to make reasonable compensation, for, to the extent mentioned, in the spirit of justice, the law implies a promise to pay the reasonable value of the services rendered. Of course, what has been said in no manner curtails the right of the plaintiff to show if possible that he intended to charge and that the defendant intended to pay; that is, to show an actual contract- as contradistinguished from one implied by law. In cases circumstanced as this one, the result of the authorities is that it is incumbent upon the plaintiff to show that he performed the services; that he intended to charge for them at the time; and that the defendant either intended at the time to pay for them (in which case, of course, there is an actual contract arising from the mutual intention of the parties) or that the services were of such a character and were performed under such circumstances as to raise the presumption that the parties intended they were to be paid for, or at least that the circumstances were such a reasonable man -in the same situation with the person who receives and is — 73 — benefited by tbe services, ought to -understand' and know that compensation would be expected from them. This is the doctrine of our Supreme Court asserted in this identical case on a former appeal. “[Wagner v. Edison Electric, etc., Co., 177 Mo. 44, 63, 64.] For the leading and best considered authorities on the subject, see Sawyer v. Pawners’ Bank, 6 Allen (Mass.) 207; Pew v. Gloucester Natl. Bank, 130 Mass. 391; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98, 112; Bassett v. Fairchild, 132 Cal. 637; Taussig v. Railway, 166 Mo. 28. Now it is true that plaintiff was not an officer of the defendant company in the first instance. Nevertheless as a member of the joint committee on conduit construction, he assumed certain duties and obligations to this defendant and all the other companies whose interests converged in that committee. That is to say, the relation of plaintiff to defendant and each of the other companies, except the particular company which he represented because of his committee assignment, was such as to afford a presumption upon which the different companies, other than the companies which he particularly represented, may rely that such services as were rendered by plaintiff were performed gratis to them, in consideration of such services as were being rendered by the particular agent of each other company on the same committee: In other words, the defendant had the right to presume that the services rendered by the plaintiff were gratis to it, unless it knew plaintiff intended, to charge and it intended to pay him for the’ same in which case there was, of course, an actual contract because there was a meeting of the minds to that effect, or unless the plaintiff intended to charge for his services, and the services rendered as engineer, aside from his office as a member of the committee, were rendered under such circumstances as to raise the presumption that the parties intended and understood they were to be paid for, or that the character of the service and the circumstances under — 74 — which they Avere rendered, Avere such that a. reasonable man in the same situation, would and ought to understand that compensation was to be made for them. The instruction above set out treated with the matter of defendant’s actual intention Avell enough; but it failed to express the true rule touching the constructive contract or promise to pay implied by law, -That is, it did not authorize a finding for the plaintiff if the character of the services and the circumstance attending the employment and service were such as to lead a reasonable person to believe that compensation Avould be expected from him therefor. Besides; the rule declared by this instruction is entirely inconsistent with other instructions given on behalf of the plaintiff. For the reasons above pointed out, the judgment will be reversed and the cause remanded. It is so ordered. Reynolds, P. J., and Goode, J., concur.