Ohio Creek Anthracite Coal Co. v. Hinds , 15 Colo. 173 ( 1890 )

Chief Justice Helm

delivered tbe opinion of the court.

In 1885 tbe appellant company was organized as a successor to tbe Mount Carbon Anthracite Coal Company, wbieb at tbe same time ceased bo exist. Tbe husband of appellee was a director, also a member of tbe executive committee, while her son was the superintendent and general manager of both companies.

In the spring of 1885 appellee took charge of the company’s boardmg-house, under an arrangement by which she was to receive from it §26 per month for each employee boarded. During the succeeding two years she obtained, from time to time, groceries and other merchandise, as well as cash, from the company. The keeping of her accounts, and the making of her settlements, appear to have been left almost entirely to the supervision of her son. He frequently had personal obligations of his own charged to his mother’s account, and, while he remained, no objection was made because of the items thus entered against her. On the 1st of June, 1887, the son terminated all .connection with the company, and soon afterwards left the state. He, however, directed that all claims thereafter made by his creditors against him be charged to his mother’s account. Subsequent to the date last mentioned, bills aggregating a large amount, for which the son was responsible, were thus debited.

In September of the same year the present action was brought by appellee to recover a balance due her. The company pleaded a set-off or counter-claim, exceeding in amount the sum demanded in the complaint. All of its alleged counter-claim accruing subsequent to the 1st of June, 1887, was disallowed at the trial, and appellee recovered judgment for §1,902.

The practice of the son in occasionally charging personal items of his own to appellee’s account while he was the company’s superintendent and general manager, in and of itself, did not warrant a continuance thereof after his connection with the company had ceased. Uor did this practice, coupled with the fact that, while such superintendent and general manager, he attended to the settlement of her accounts, establish such an agency as enabled him to bind her by an express contract to operate after his departure. The evidence indicates that he arranged with the bookkeeper to close his personal account on June 1st, when he left, and to charge against appellee his personal debts thereafter accruing and presented to the company, either by himself or his creditors; hut there is nothing to show that appellee assented to this arrangement or even knew of its existence, and she expressly denies her son’s authority to make it. 1711116 he was managing the company’s business and settling its accounts with her, it may have been a matter of mutual convenience to adjust certain personal items in connection therewith in the manner adopted. The son was, to some extent, acting as the agent of both parties. For a portion of the time he kept the company’s books, and always, to a greater or less extent, regulated its charges and attended to their monthly liquidation. It requires no argument to show that the habit of sometimes settling, in connection with appellee’s account, items purely personal to the son, grew out of, and was mainly dependent upon, the son’s official connection with the company and the consequent business relationship arising between the parties; hut, when the business status thus created was wholly changed by the son’s absolute withdrawal from all relationship with the company, the mother should have been consulted before an attempt was made to hold her for his future debts.

Prior to the commencement of the trial, appellant made demand, under section 63, Civil Code, for -an itemized statement of the account sued on. Appellee’s response to this demand contained, among other items, the folknving: “ To hoard of defendant’s officers and employees, as per balance struck and agreed upon on or about July 1,1887, $1,506.01.” At the trial appellee was permitted to state that the books of the company were balanced at the end of each month, and incidentally to give the different balances thus found for the months beginning with October and ending with July. These prior' balances need not have been mentioned, but the reference thereto does not sustain counsel’s objection. Appellee testified that, on the 1st of July, the balance found showed an indebtedness to her of $1,506.01. In this regard she was corroborated by McDougal, her attorney. The testimony thus given directly sustains the statement rendered. FTo attempt was made to relate the different items constituting this particular balance. Therefore no response on our part is necessary to counsel’s argument predicated upon the hypothesis that, under the general statement mentioned, appellee was permitted to enumerate different specific items, of which appellant had received no sufficient notice.

FTor was there error in rendering judgment for a larger amount than that prayed for in the complaint. An answer being filed, and appellee’s claim being contested at the trial, she could recover such a sum as the evidence showed she was entitled to, regardless of the amount designated in this part of her pleading.

But among the items in the counter-claim disallowed by the court was one for $207.89, paid by the company to an employee of appellee. Appellee expressly admits that she requested the book-keeper to pay this claim. We cannot account for the court’s failure to allow this credit, save upon the ground of inadvertence or mistake. For error in this particular the judgment will be reversed, but it is deemed unnecessary to re-adjudicate the entire controversy. The cause will be remanded, with directions that the court below enter a new judgment for the amount due after deducting the sum mentioned. Bemaining objections are not considered of sufficient importance to require notice in this opinion.

Reversed.