Lakenan v. Hannibal & St. Joseph Railroad , 24 Mo. 505 ( 1857 )

Scott, Judge,

delivered the opinion of the court.

As it appears that the defendant immediately upon the overruling of his motion for a new trial asked the court to sign his bill of exceptions, and as the bill was signed containing the motion for the new trial, it is sufficiently plain that the overruling of the motion for the new trial was excepted to. This objection might be met with another answer ; but it is deemed unnecessary to state it.

The only question in the case is, whether the receiving of the bonds from the city and county and the delivery of them to the treasurer of the company and taking his receipt therefor, were services within the terms of the contract with the plaintiff to collect calls on the subscriptions to the stock of the company. It can hardly be necessary to state that the designation of the plaintiff “ as collector” by the treasurer of the company, did not make him such, as there is nothing in the record which shows that the treasurer had any authority to bind the company by such admission, or that he had any power to contract for the company in relation to the subject. The failure of the plaintiff to charge his commission for receiving the bonds in his previous accounts for services in collecting which were settled is certainly a circumstance against him, and the force of that circumstance is strengthened by the fact that the claim of compensation for such service was not made until after he left the company’s employment. There is a responsibility in receiving money which is not incurred in taking bonds. The board must have had an eye to this responsibility in fixing the compensation for collection. We see all the collectors receiving the same commission. From this we may infer that similar services wore, in the contemplation of the company, to be performed. There are counties in which collections were to be made where it does not appear that any bonds were to be received. The city and county having made arrangements with the company by which their bonds were to be taken instead of the money, they were no longer to be called upon for money by the collectors. Such an arrangement placed them beyond the sphere of the contract by the collectors with the company. After the agreement by the company to receive their bonds, the collectors had no authority to call on them. By measuring the commissions of the collectors by a “ per cent.” there was a clear indication that money only was to be received. The taking of bonds is not a collection of money in the ordinary sense of the term “ collect.” After the bonds are received the money is still to be collected on tnem. The testimony of the witness relative to the charges of lawyers for collections was altogether irrelevant, and had nothing to do with the case. The question presented involved a construction of a special agreement, and the practice and ■usages of lawyers could not affect it. The second and third instructions given for the plaintiff were erroneous. This is no ease for a quantum meruit, and the contract to collect did not extend to the taking of bonds. We have given the contract a construction under which the plaintiff himself a long time acted, ■ as may be inferred from his conduct.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded ;

Judge Leonard absent.