Owen v. Hadley.

says, was the only agreement had respecting his compensation. At the trial below it was admitted by defendants that Judge Spencer was acting at the time for the State Committee. The evidence is that he was retained by Mr. Morris, the Chairman of the Committee, without any authority therefor at any time given by the Committee itself. It is clear that this could not bind the individual members of the Committee; and such is conceded. Nor does it appear that this agreement could be binding upon any of the other defendants.

The evidence is that Mr. Morris, acting upon his own initiative, employed Judge Spencer and Mr. Hocker as counsel, and provided certain funds to defray the necessary expenses incident to the contests, thereby relieving the contestees of the burden of employing counsel and defending the title to their respective offices in these proceedings. In so doing it is to be inferred that Mr. Morris was acting under a sense of responsibility which he felt as Chairman of the State Committee, believing that his political party, through him as the head of its State organization, should assume this burden. He did not, however, contract directly with plaintiff, but this was left to Judge Spencer, one of the counsel employed in the matter. The latter's agreement did not undertake or purport to bind Mr. Morris personally, nor did Judge Spencer have any authority so to do. Neither did it purport to bind Gov. Hadley or any of the contestees; nor could it, in the absence of authority therefor. It quite clearly appears that Judge Spencer limited his own responsibility to $50 per week, which was paid; and that no further liability could attach to him in the premises. If Gov. Hadley and Mr. Morris are liable, such liability cannot grow out of the agreement made by Judge Spencer, but must arise from the acts of these defendants themselves in the premises.

Owen v. Hadley.

It is contended that Gov. Hadley and Mr. Morris are liable, upon the theory that they procured the services to be rendered for the benefit of others without authority from the latter, whereby they became liable to plaintiff for the reasonable value of such services. We have no fault to find with the general proposition of law asserted in this connection, viz., that one will become personally liable, who, without authority, assumes to act for another, and procures the rendition of valuable services for the benefit of such other person. But the facts here are such, we think, as to leave no room for the application of this principle. Nothing appears which could bind either of these defendants personally as for having procured the rendition of the services by plaintiff without authority from those to be benefited thereby, or otherwise. All that is shown as to Gov. Hadley's connection with the ultimate employment of plaintiff for this work is that he told plaintiff, as the latter says, to report to Judge Spencer with whom plaintiff made his agreement. And, Mr. Morris appears to have left the matter of employing plaintiff entirely in Judge Spencer's hands, and to have done nothing whereby to bind himself personally in the premises. And the evidence is that while the services were being rendered Mr. Morris took charge of making the weekly payments to plaintiff and learned that plaintiff was claiming $100 per week, whereupon he told plaintiff that he would pay but $50 per week. We see nothing in the evidence to fasten personal liability upon either of these two defendants.

A further contention is that plaintiff is entitled to recover upon quantum meruit against the four above-mentioned contestees, upon the theory that where services are performed for one, either with or without his knowledge and consent, and he knowingly accepts and avails himself of such services, the law will imply a promise to pay a fair and reasonable compensation therefor. Again there is no fault to be found

Owen v. Hadley.

with this as a broad general statement of the law; but appellant's contention in this regard omits to properly reckon with the special agreement made in the premises and under which the services were rendered. It is quite true that where an existing express contract has been fully performed by the plaintiff, and nothing remains to be done except the payment by defendant for the services rendered thereunder, plaintiff need not declare on the express contract, but may proceed upon quantum meruit for the recovery of the reasonable value of such services. In such event, however, plaintiff's recovery is limited to the contract price; that is to say, he may recover the reasonable value of his services not exceeding the contract price. The contract is admissible in evidence, and the rights of the parties are to be determined in accordance with it. This question is fully discussed in American Surety Co. v. Fruin-Bambrick Construction Co., 182 Mo. App. 667, 166 S. W. 333, in an opinion by NORTONI, J., where many authorities will be found cited.

In the instant case the special contract price limited plaintiff's compensation to $50 per week—except in so far as the agreement purported to bind the State Committee as such. It did not purport to and could not bind the contestees for the payment of additional compensation to plaintiff. And no recovery can be had against the contestees upon quantum meruit in the face of the express terms of the agreement made.

And furthermore, one who is benefited by work performed is not liable therefor if credit is given solely to another at whose request it is performed. [See 40 Cyc. p. 2838.] The evidence shows that plaintiff performed his services relying entirely upon Judge Spencer and the State Committee to compensate him therefor. And as to this it matters not that the agreement, under the circumstances, failed to obligate the individual members of the Committee, who had naught to do with the matter.

Owen v. Hadley.

The action of the trial court in refusing to order the issuance of a subpoena duces tecum, upon plaintiff's application therefor, is assigned as error. Plaintiff sought to have such subpoena issued against Mr. Thomas K. Niedringhaus, then treasurer of the Republican State Committee, to compel the production of his books as such treasurer. Such application was made for the purpose of attempting to show that prior to the suit the Committee was "in funds," and had the means wherewith to pay plaintiff's claim. Touching this matter there was some conflict in the evidence as to whether plaintiff was relying upon the Committee to pay his claims when it had funds available, or in the event that sufficient funds were obtained by it for the purposes of the contests.

But this entire matter becomes immaterial in the view which we take of this case. It cannot matter whether the Committee had funds on hand for contest purposes, or otherwise, so far as concerns the personal liability of any of these defendants. Though there was evidence that, from the time of plaintiff's engagement to that of the trial, the Committee was always in debt to the extent of some thousands of dollars, if the question of the Committee's financial affairs were here involved, the propriety of the ruling of the trial court respecting the issuance of the subpoena upon the Committee's treasurer would demand our consideration. Under the circumstances, however, this ruling need not be reviewed.

Other questions are raised, but they are either not controlling or are disposed of by what we have said above:

The judgment must be affirmed; and it is so ordered. Reynolds, P. J., concurs. Nortoni, J., not sitting.

David v. Cider Co.

EDWARD DAVID, Appellant, v. CLARKSVILLE CIDER COMPANY, Respondent.

St. Louis Court of Appeals, December 8, 1914.

1. MASTER AND SERVANT: Injury to Servant: Safe Place to Work: Evidence. In an action for injuries received by a servant by a barrel falling from a stack of barrels upon him, evidence by plaintiff, who had not observed how the barrels were piled, that "the barrels were piled too shaky-that is how it happened," was a statement of a mere conclusion, and hence possessed no probative force toward establishing that the barrels were piled in a negligent manner.

2. EVIDENCE: Conclusions. The conclusion of a witness has no probative force.

3. MASTER AND SERVANT: Injury to Servant: Safe Place to Work: Sufficiency of Evidence, In an action for injuries received by a servant by a barrel falling from a stack of barrels upon him, where the petition assigned as negligence that defendant had stacked the barrels in a place where, because of traffic, the ground was caused to vibrate, resulting in the stack becoming insecure and dangerous, and also that the barrels were negligently stacked, evidence held insufficient to show that the fall was due to the vibration of the ground at the place where the barrels were stacked, or that the barrels were negligently stacked, or if, in fact, they were negligently stacked, that defendant had notice thereof, and hence plaintiff was not entitled to recover.

4.

5.

: Fellow-Servants. Where a cooper employed by a cider company was required, when so directed, to assist in stacking barrels ready for delivery, other servants who stacked the barrels, which subsequently fell on the cooper, were fellow-servants, for whose negligence the master was not liable.

Res Ipsa Loquitur. The doctrine

of res ipsa loquitur does not apply, where the injury to a servant was caused by the falling of a barrel from a stack near where he was working.

Appeal from St. Louis City Circuit Court.-Hon. William M. Kinsey, Judge.