Harrison v. Kansas City, Clinton & Springfield Railroad

Smith, P. J.

— The allegations of the plaintiff’s petition were that, on the first day of February, 1886, the plaintiff and his then partner, under the name of Bowman & Harrison, contracted with defendant to deliver nineteen thousand or more cross ties on its right of way, and for which defendant agreed to pay forty cents each for all eight-inch specifications and thirty-five cents each for all seven-inch specifications, and that under the contract they delivered fifteen thousand, five hundred and sixty-four eight-inch specification and four thousand and eighteen seven-inch. specification ties; that defendant paid them forty cents per tie for the first-named class and thirty cents for the second class, leaving five cents still due on the number delivered of the second class. The answer was a general denial and payment in full. The plaintiff had judgment and defendant has appealed.

The defendant complains of the action of the court in giving an instruction which declared that if it believed from the evidence that the plaintiff, in the fall of 1885, agreed with S. "W. Clapp, chief engineer of the Kansas City, Fort Scott & Gruff Railway Company, or with Gr. H. Nettleton, general manager of said company, to furnish said company, or the defendant, all or as many railroad cross ties during said fall and winter following up to May 1, 1886, as they might be able to place on the right of way to the amount of fifty thousand ties or more, at and for the price of forty cents each for first-class ties, and thirty cents each for second-class ties, and that the ties in controversy were furnished during said period, and that said plaintiff or his said firm has received pay for the same at said rate, the finding should be for the defendant, *336 unless said contract was afterwards modified by competent authority, or by like authority abandoned by mutual consent, and a new and different contract covering said ties entered into.

The undisputed evidence shows that the plaintiff, with Bowman, his then partner, in the fall of 1885, entered into a parol contract with defendant to deliver cross ties to May 1, 1886, the price being forty cents for eight-inch specifications and thirty cents for seven-inch specifications. The letters read in evidence comprising the correspondence on the subject, and which reiterate the previous parol agreement between plaintiff and defendant, when taken together, make out a written contract between them for the delivery of all ties to May 1, 1886, at the prices per tie just stated. The plaintiff, over the objection of the defendant, was permitted to give evidence tending to show that, subsequently, in February, 1886, there was a parol agreement entered into whereby the defendant agreed to pay plaintiff thirty-five cents for seven-inch specification ties in the place of thirty cents originally agreed upon.

Parties may by a subsequent parol agreement, upon a sufficient consideration, change or modify the terms of the written contract. Bunce v. Beck, 43 Mo. 266 ; Herring v. Ins. Co., 47 Mo. 425 . But, when they do so, they must declare on the agreement as it stands modified. This is usually done by setting out the agreement and the modification of it. Every substantive fact which the plaintiff must prove to maintain his action should, under the practice act, be alleged so that an issue can be made thereon. Lanitz v. King, 93 Mo. 513 . Here the plaintiff sues on the original contract, and relies for a recovery upon the subsequent modification of it. He should have stated the contract and the modification thereof so that an issue could have been made in the latter. Under the pleadings, evidence of *337 the modification was inadmissible. The theory of the instruction was outside of the issues of fact made by the pleadings. The court did not possess the power to change by its instruction the issues which were presented by the pleadings.

In view of the probable retrial of the case, it may be proper to remark in respect to the question as to the-extent and scope of the authority of Jacques, the purchasing timber and fire agent of the defendant, that the-general rule in such cases is that those dealing with an agent have a right to conclude that the principal intends the agent to have and exercise those powers and those only, which necessarily, properly and legitimately belong to the character in which he holds him out. In the exercise of those powers the agent-is the alter ego of' the principal. And he may bind his principal to the extent to which he is held out as competent, irrespective-of any instructions or restrictions on his powers. Mechem on Agency, secs. 278, 279; Kinealy v. Burd, 9 Mo. App. 359 ; Crews v. German, 14 Mo. App. 505 . And this authority of the agent may be inferred from the nature of his employment. Edwards v. Thomas, 66 Mo. 468 .

The question of agency is one for the jury upon all the evidence in the case, and is not concluded by the-statement of the alleged agent. Barrett v. Railroad, 9 Mo. App. 226 .

It follows that the judgment of the circuit court, will be reversed and the cause remanded.

All concur.