Conservation Co. v. Stimpson

Boyd, O. J., delivered the opinion of the Court. This is a suit by the appellee against the appellant to ree cover commissions for services rendered in the purchase by the appellant of the capital stock of the Eureka. Life Insurance Company of Baltimore City, which he claims he was employed to procure- There are six common counts and one on a special contract in the declaration. The suit was brought under the Practice Act of Baltimore City, and the account attached to the declaration was for “commission ³¹⁷ 'earned at an agreed rate, 2%% of $460’,000 for services reoa•dered in the purchase by the Conservation Company of 1,000 shares, of the capital stock of the Eureka Life Insurance Company of Baltimore City for $460,000 * * * $11,500.00.” General issue pleas were filed, and the: case was, tried before the Court, without, a jury.

A verdict was rendered for the plaintiff for the amount claimed, and an appeal was taken from a, judgment entered thereon. There are seventeen bills, ■of exception on the rulings: on the admissibility of evidence, one presenting the rulings on the prayers,, and a separate one •on the action of the: Court in overruling special exceptions to the plaintiff’s prayer: 1. Inasmuch asi the appellant contends that the appellee •cannot recover under the common counts, it will he well to first consider that. In the brief it relies on what was said in Bethlehem Steel Co. v. Dornberg, 135 Md. 121 .

It was ’there said that, “The first three counts in the declaration wore the common counts in assumpsit, on an implied contract, while the fourth count sets out a specific contra,at; and it needs no citation of authorities for the proposition that a plaintiff cannot recover in the same suit upon "both an implied and expresis contract.” Of course, a plaintiff cannot recover in the same suit upon loth an implied and express contract, for the same transaction, and in that case the plaintiff relied on an express contract. There can be no question in this State about the right to join common counts with a special count. It is said, in 1 Poe, Sec. 583: “In assumpsit, a careful pleader-, when declaring on a special contract, seldom omits the common counts.” Under our established practice there can be a recovery under the common count- applicable, where-there is1 a special contract, provided the plaintiff has performed his part of the contract, and nothing remains hut to collect what isi due by the defendant. Sometimes the plaintiff cannot prove the contract just, as he alleges it in his special count, and hence the pleader will join common counts with it.

"When the alleged contract is a verbal one, as tbe one before us was, he may he able to prove ³¹⁸ that he was employed and had performed the services, but may fail to show to the satisfaction of the jury that the de>fendant agreed to pay the compensation he alleged was agreed upon, or may fail in proving some other part of the-contract as alleged. It was said by our predecessors as early as Speake v. Sheppard, 6 H. & J. 81 , that: “It is unquesttionably true, that when a party declares upon a special agreement, and proves a contract variant from the one on which he does declare, he cannot recover on the special contract, on account of the variance, nor can be recover on a quantum, meruit, because there was a special contract; but if he declares upon a special contract, and fails to prove it, but proves an agreement, and thei work done according to the terms of it, it raises a duty for which a general indebitatus assumpsit will lie. Bull, N. P., 139, 140; Payne v. Bacomb, 2 Dougl. 651.” In Payne v. Bacomb the trial Court refused to let the plaintiff offer evidence under the general counts, and directed a non-suit. On appeal that was reversed, and Lord Mansfield said: “This was formerly the rule, when the fashion was to lay hold of a non-suit whenever it could be done.” In Speake v. Sheppard there were three counts, the first upon the special agreement, the second upon a general indebitatus assumpsit and the third upon a. quantum meruit.

It was originally held that there could be no recovery under the indebitatus assumpsit counts, unless a promise to pay a specific sum was shown, and hence the quantum meruit and quantum valebat counts were resorted to, but the rule as to indebitatus assumpsit counts was long since abandoned in Maryland and the quantum memiit and quantum valebat counts “fell into complete disuse,” while to the common counts now used “the name of indebitatus assumpsit counts strictly belongs.” 1 Poe, Pl. & Prac., Sec. 91. There are so many cases in this State showing the practice and use of joining common counts with special ones, that it is unnecessary to refer to many of them. The cases of Fairfax F. M. & M. Co. v. Chambers, 75 Md. 604 , and Gill v. ³¹⁹ Donovan, 96 Md. 518 , state fully and clearly wliat can be preven and recovered under tbe common counts, even wliere there is a bill of particulars which shows that there was a special contract. In each of those cases the alleged contract was verbal, like the one in this case, and the bill of particulars is very similar to this one.

Although there does not seem to have been a demand for a bill of particulars, as this suit was under the Practice Act, the account filed with the declaration took the place of a bill of particulars, under Sec. 24, Subsec. 107 of Art. 75 of 3rd Vol. of Code. If the common counts are to have the effect given them in those cases, when they are not joined with a special count, we can see no reason why they should not have the same effect when they are so joined. See aisa Dougherty Co. v. Gring, 89 Md. 535 , where the subject was discussed by Judge. McSheery, in a case where there were common counts and a special one.

It does not. follow, therefore, thai the question of implied assumpsit was eliminated in this1 case, as the appellant contended. 2. The next question we will consider is the contention of the appellant that John O. Maginnis had no authority, express or implied, to purchase for the appellant the capital stock of the Eureka Life Insurance Company, and, therefore, could not make a contract to pay a commission for its purchase. The appellee claims that Mr. Maginnis, who was at the time the president of the Conservation Life Insurance Company, employed him to procure that stock for the appellant, and promised to pay him 2b-> per cent, commission for his services, part of which he was to give Mr. G. W. S. Mus-grave for the services to be rendered by him. There was an unfortunate conflict between the appellee and Mr. Maginnis as to compensation, the latter denying positively that he ever made such an agreement and contending that Mr. Stimpson, the appellee, who •was the secretary of the People’s Life Insurance Coupon Company, took the part he did concerning the purchase of the Eureka stock because they were considering ³²⁰ an arrangement which would greatly benefit the Coupon Company, if the appellant could buy a going life insurance company.

We are not called upon to pass upon the question of fact, as to whether such an agreement was made between them, but, assuming that it was, to determine on this point whether Mr. Maginnis had the power to make it, as that lies at the foundation of plaintiff’s right to recover under the alleg'ed agreement. It cannot be doubted that Mr. Stimpson was actively engaged in aiding Mr. Maginnis to acquire the Eureka stock. As the alleged contract was verbal, it was for the judge, sitting as a jury, to find whether there was a contract, and, if so, what it was. It is shown by both sides that Mr. Stimpson’s connection with the negotiations for the Eureka stock began in the early part of June, 1918, and continued at intervals in July, August and September, into October.

The deal was finally closed by a written agreement between the Conservation Company and Messrs. Coblentz and Hall, agents and attorneys, dated December 3, 1918. It was in September that Mr. Stimpson claims that the amount of commission was fixed, prior to that time it being simply agreed that he was to be paid reasonable compensation for himself and Mr. Musgrave, without naming the amount. Then he testified that about three weeks before the closing of the transaction in December Mr. Maginnis told him how he was arranging to finance the commissions, and about November 26th told him that they had arranged for the money, and that the commissions were in shape to be paid.

A day or two after the deal was closed he asked Mr. Maginnis what arrangements they had made about the commissions, and was told that the money had been paid to the Eureka stockholders and that he should collect it from them. As we have seen, the position of the appellant is that John O. Maginnis had no authority, express or implied, to purchase the Eureka and, therefore, could not malee a contract to pay a commission for its purchase. But we cannot hold that ³²¹ there was not legally sufficient evidence to be submitted to the Court, sitting as a jury, as to the premise upon which the appellant’s conclusion is based. Mr. Maginnis was not only the president of the company until some time in October— Mr. Mahool having been elected at the meeting of October^ 24, 1918 — but he is spoken of in at least one place in the record as president and manager.

It is shown that the stockholders and directors of the Conservation Company early determined that the proper policy to be adopted was to acquire a going life insurance company, and there can be no doubt that Mr. M'aginnis was the active and controlling person in carrying that out. He testified that “Many of our men on our board were not familiar with life insurance terms and had to> have those things explained, so at these conferences we had to show them where we arrived at value.” It cannot be contended that nothing was done showing his authority, excepting what appears in the minutes of the board. He said, in speaking of the conference that resulted in agreeing upon a price for the1 Eureka, that he was not- sure whether it “was a directors’ meeting or a conference of stockholders. They had so many of those conferences; but there was a committee appointed consisting of Messrs'.

Mahool, Schloss and the witness to meet the stockholders, of the1 Eureka Life Insurance Company.” Mr. Mahool testified that Mr. Maginnis reported, “either to the board or those conferences that were held in ihe office of the company, and they would call a board of directors’ meeting when they had something very definite to bring before the board”; that after there was some likelihood of the negotiations going through, the board appointed him and Mr. Maginnis a committee to carry them through. The record discloses that the officers were negotiating with at least three companies, and had been for some time — with one as early as February — but there were no results excepting with the Eureka, which apparently came about through the serviees of Mr. Stimpson. ³²² • At a meeting of the board on'June 19, 1918, a communication was read from a Philadelphia company, giving details as to plans for purchasing control, and the chairman was authorized to appoint a committee on permanent organization. Stimpson had told Maginnis about June 1st that Mus-grave was the one who' could approach the stockholders of the Eureka, and that in order to get him interested he would have to be able to tell him that a reasonable commission would be paid witness, so that he could tell him that ihe (Musgrave) would receive a portion of what the Conservation Company paid him; that Maginnis -told him to see Musgrave at once and tell him that a reasonable commission would be paid, if they succeeded “in putting the matter across.” He saw him that day, explained it to him and Musgrave promised that he would take the matter1 up and report to him. Two days later he was called over the telephone by Musgrave and taken to Mr. Hall, who had offices' with Musgrave and was a stockholder in the Eureka, and went over the matter with him.

By appointment Stimpson took Maginnis to Mr. Hall on June 6th, introduced them and the negotiations began. Owing to the fact that Mr. Hall was away on Government business, Stimpson did not get to see him again until July 30th, when he made an appointment for Mr. Hall to meet Mr. Maginnis on August 8th. After a conference of several hours between them, Mr. Hall said he would take it up seriously with Messrs. Coblentz and Cover, the principal stockholders of the Eureka.

The appellee saw Hall on the 13th of August, who said progress was being made, and about September 3rd or 4th he and Maginnis again saw Hall, who arranged for Messrs. Coblentz and Cover to be in his office on September 6th. At that meeting the price was fixed, and the deal finally went through. On July 17, 1918, there was a meeting of the board, and the following appears in the minutes: “Mr. Mahool reported on the progress made in negotiations for the purchase of a going life insurance com ³²³ pany, stating that the negotiations with one certain company in town were progressing to the closing point, that he had an appointment this evening with one of the principals.

It was the sense of the meeting that the officers continue this work and keep up the negotiations with the three companies mentioned, closing with the first of the three offering the best advantages to this company.” It may be inferred that the Eureka Company was one of the three referred to, and it may have been tbe one referred to, “that the negotiations with one certain company in town were progressing to tbe closing point.” When Mr. Mahool reported on the progress made in the negotiations, can it be doubted from the language used that the directors had been previously informed of the negotiations, and that Mr. Mahool and Mr. Maginnis were authorized to conduct them? If there can be any doubt about that, at that meeting “the officers” were authorized, not to say directed, to continue the work, etc. Later the conferences with Mr. Hall were held, and finally the one on September 6th with Messrs. Coblentz, Cover and Hall. On August 21st Mr. Mahool reported to the board tbe details of his negotiations with regard to the purchase of the Sun Life Insurance Company, and “Mr. Maginnis made a report on the developments and progress of negotiations with the Eureka.” At that meeting a resolution was adopted, which began witb the preamble that “Whereas, the Conservation Life Insurance Company has been given an opportunity to purchase the Eureka Life Insurance Company of Baltimore, and negotiations, are pending with certain other companies of this city”, etc., and went on to provide for a change of the name to “The Conservation Company” and to alter the purposes and powers; of the company, to be stated in a proposed amendment of tbe charter.

That was adopted' by the stockholders on September 24th, and fifteen directors, including Mr. Mahool and Mr. Maginnis were elected. At a meeting of the board on October 3rd ³²⁴ temporary officers were chosen, and on October 24th Mr. Mahool was elected president, and Mr. Maginnis vice-president. On November 20th the minutes show, amongst other proceedings, that: “In. behalf of the committee appointed at the last meeting, and authorized to negotiate for the purchase of the Eureka Life Insurance Company, the vice-president, Mr. J. M. Maginnis, made a verbal report, stating that had been accomplished, and submitting a copy of the statement given committee by the Stockholders’ Committee of the Eureka.” • The report was accepted, the committee discharged, and it was unanimously resolved: “That the officers be and they are hereby directed to purchase the Eureka Life Insurance Company at and for the sum of $460,000; to arrange for a loan of such sum or sums of money as may be necessary to pay for same, and to issue the promissory note of the company for deferred payments or for all or any part of said purchase price, and to do all acts and things necessary to secure the control of the said Eureka Life Insurance Company to the Conservation Company.” ■ On December 5th a meeting of the board was held, a report “of the officers” was accepted, the terms and conditions of the agreement approved, and a copy ordered to be placed in the files of the company. A resolution was also* passed “that the officers be authorized to make whatever arrangements with the banks that in their judgment they deem necessary toward the fulfillment of our agreement with the Eureka.” It will readily be seen from] what we have thus set out at some length that the authority granted Mr. Maginnis was not confined to the powers the charter and by-laws gave him, in defining the duties of the officers of the president and vice-president, but his authority was sufficiently authorized and ratified by the Board of Directors at their meetings to require that to be submitted to the Court, sitting as a jury. ³²⁵ We could not hold, under the minutes alone, that there was no evidence of his authority, but the circumstances and facts in connection therewith malte it clear1 that there was ample evidence to be submitted.

While they speak of “the officers” in connection with the negotiations, the testimony of Mr." Maginnis and of Mr. Mahool shows that the former was really the officer who conducted the negotiations for the Eureka-, as Mr. Mahool was the officer who conducted them with the Sun Life, although the latter employed other people to carry them on. Mr. Maginnis had conferences from time to time with the- other stockholders, and officers, and there were evidently some meetings- of the executive committee, if not of the directors, which do- not appear in, the minutes. The executive