Runkle v. Burnham
153 U.S. 216 (1894)

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U.S. Supreme Court

Runkle v. Burnham, 153 U.S. 216 (1894)

Runkle v. Burnham

No. 266

Argued March 12-13, 1894

Decided April 30, 1894

153 U.S. 216

Syllabus

A contract for a loan and water works in Havana having been awarded to R., G., L. and M., a deposit was required as a guarantee. N. was employed by R. to raise the money. He borrowed it from B. R. became the assignee of the interests of his co-contractors, and then failed to perform the contract.

In order to procure a general release from the liabilities arising from such failure, he gave a power of attorney to Q., who thereupon, in his name and as attorney in fact entered into an agreement in writing with B. by which it was, among other things, agreed that lt. should pay to B. an agreed balance of $19,087.36 in three months from date, with interest at 9 percent. That sum not being paid when clue, B. sued R. to recover it.

Held:

(1) That the power granted by R. to Q. was outstanding when the agreement was executed.

(2) That the agreement made by Q. with B. was authorized by the power.

Page 153 U. S. 217

(3) That R., having taken an assignment of the respective interests of his co-contractors, stood in their shoes, and that evidence touching the transaction, admissible against an assigning co-contractor, was admissible against him.

The rejection of evidence immaterial to the result did not constitute reversible error.

A witness may he asked as to the relations of the parties at the time of the execution of a written power of attorney, although his answers may have a bearing upon their obligations arising under a written contract made under the power.

Findings of fact made by the court below are binding here when there is any evidence to support them.

A defendant who, after denial of his motion for a nonsuit made at the close of plaintiff's evidence in chief, offers evidence in his own behalf thereby waives his motion and an exception to the denial of it.

The defendant here, who was plaintiff below, brought an action of assumpsit against Daniel Runkle to recover the sum of $19,087.36, with interest at the rate of nine percent from the 4th of August, 1884, to the time of entering suit.

After issue joined, the case was, by stipulation, submitted to the court without the intervention of a jury.

The contract in issue purported to have been "subscribed" by one Mestre as "attorney in fact of the defendant."

At the close of the plaintiff's case, the defendant moved for judgment in his favor, which motion was overruled, and this action of the court was excepted to. Defendant did not thereupon rest, but proceeded to offer evidence on his own behalf. After both parties had concluded, the defendant requested the court to find first, that it does not appear that Mestre had any authority to assume an obligation in the name of the defendant, and second that the contract of August 4, 1884, does not place any liability on the defendant. These requests were refused, and the defendant duly excepted to their refusal. The court then proceeded to find the facts as follows:

"First. That on the 18th day of March, 1882, contracts for a loan and waterworks were awarded by the City of Havana to Daniel Runkle, the defendant, Walter H. Gilson, Joseph H. Lyles, and Maddison & Co., of London; and, on the 27th of the same March, Lino Martinez deposited the sum of $64,000 in Spanish gold in the

Page 153 U. S. 218

Municipal Treasury of Havana as a guaranty for the proposition which Messrs. Gilson, Runkle, Lyles, and Maddison & Co., of London, had presented to the Municipality of Havana for the loan of $5,600,000."

"Second. That Martinez had been employed by Runkle, who was acting for himself and his co-contractors, to raise the amount required to be deposited as a guaranty for the fulfillment of a contract, and in pursuance of this employment Martinez had borrowed the sum of $64,000 from the plaintiff, Burnham."

"Third. Runkle, Gilson, and Lyles undertook to repay this sum of $64,000 to Martinez at any time he should ask for the same, if it should be demanded by the city in consequence of their not having carried out the contract for the waterworks, or for any cause for which the city might retain the deposit, and as a remuneration and for the payment of interest to Martinez they assigned to him the amount of $25,000, payable monthly at the rate of one and 137/1000 percent, from the amounts they should receive for the works. This undertaking fell through in consequence of the final abandonment of the contract, but the fact remains that it was the understanding of all the parties that Martinez was to be repaid the sum of $64,000, with interest, and also to be remunerated for his services or expenses."

"Fourth. Subsequently to these proceedings, Runkle became the assignee of all the rights and interests of his co-contractors under their contract with the City of Havana, and thenceforward was solely entitled to all the profits that might accrue from its performance, and liable for the consequences of its nonperformance."

"Fifth. Runkle failed to perform the contract for the waterworks, and by reason of his default the sum deposited with the City of Havana as a guaranty was forfeited, and he became liable for such damages as were sustained by the city on account of his failure. He also became responsible to Martinez for the repayment of the guaranty deposited, with interest, and expenses incurred in effecting the loan from Burnham, amounting in all to the sum of $83,087.36, as per

Page 153 U. S. 219

account stated between Burnham and Martinez on the 4th of August, 1884."

"Sixth. Runkle, being desirous of procuring a full and general release from all liability on account of his connection with the contract for the loan and waterworks, executed in due form on the 25th of June, 1884, a letter of attorney to Jose M. Mestre, who was in the City of Havana, authorizing him 'to demand, collect, and receive such sum or sums of money and property of any kind' belonging to Runkle,"

"under or in connection with the contracts for the loan and waterworks, made in consequence of the public bid therefor on the 18th of March, 1882, and which loan and contract were awarded to me [him] together with Walter H. Gilson and Maddison & Co., and also Joseph H. Lyles, . . . and to do all things necessary in the judgment of my said attorney, and to obtain my release from all liability as one of the contractors in connection with the said loan and waterworks, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as I might or could do if personally present,"

"etc."

"Seventh. By virtue of the authority conferred on him by the aforesaid power of attorney, Mestre, on the 4th day of August, 1884, acting for and in the name of Runkle, entered into a written agreement or stipulation in the Spanish language with Burnham, of which the following is a translation:"

" This present is to certify, to which I desire to give all the force of a public instrument, that I Mr. S. J. Burnham, having received from Mr. Lino Martinez the sum of sixty-four thousand dollars, gold, on account of the sum of $83,087.36, which results in my favor from the account that under this date has been presented to Mr. Lino Martinez in relation to the drafts drawn on the 24th of March, 1882, by Mr. H. J. Overman upon Mr. E. C. Maddison, of London, and endorsed to my order by the said Mr. Lion Martinez, the which were protested for nonpayment, and protected in due course by the Messrs. Baring

Page 153 U. S. 220

Brothers and Company, of London, as the representatives of the Messrs. J. C. Burnham and Company, have agreed in regard to the balance of $19,087.36 that still remains unpaid as follows:"

" Recognizing, as I recognize, Mr. Daniel Runkle as the assignee of Mr. Walter Gilson, who in his turn was the assignee of Mr. E. C. Maddison, for himself and for the firm of Maddison and Company, I bind myself to place at the disposal of said Mr. Runkle the shares of the Charnwood Forest Railway Company, of the nominal value of fourteen thousand pounds sterling, which the aforesaid Messrs. Maddison & Company deposited in my hands and transferred to me as guaranty for the reimbursement of the amount of the aforesaid drafts and the expenses and interest relating thereto so soon as such balance of $19,087.36 shall be satisfied by the aforesaid Mr. Runkle, which it is to be done within the period of three months counting from the date hereof, it being left to his discretion either to do so directly, or to direct that, if the said shares deposited there be sold (in accordance with such instructions that for such purpose he may give), such portion as may be necessary for the reimbursement of such balance of $19,087.36, which, being covered, the remaining shares shall remain all at the free disposal of Mr. Runkle, as well as any balance in cash that may arise on the partial sale of such shares."

" The sum owing shall carry interest at nine percent per annum until its complete payment."

" Mr. Jose Manuel Mestre, as the attorney in fact of Mr. Runkle, subscribes this present stipulation by way of assent in the name of his principal."

" That, in order that it may have all its due effect, this is done and signed in triplicate of the same tenor, one for each party at Havana, the 4th of August, 1884."

"Memorandum as to Corrections"

" Nota -- At the moment of signing, Mr. S. J. Burnham stated that he assigns and transfers to Mr. Candido Zabarte y Paris all the rights and rights of action that belong to him

Page 153 U. S. 221

under the foregoing instrument, subrogating him in his place and stead by reason of having received from him the aforesaid balance of $19,087.36, but on the understanding that said Burnham remains always bounded to sell the shares of stock in question to the order of Mr. Runkle, as set forth, and to deliver to the latter the balance of the proceeds of the sale and the shares remaining. Dated as above."

" [Signed]"

"Jose Man'l Mestre"

"L. Martinez"

"S. J. Burnham"

"Cando Zabarte Paris"

" As witnesses:"

" E. Coscallucla"

" Antonio Pais"

"Eighth. Runkle had no property or debts belonging to him in the City of Havana, and the letter of attorney was executed for the sole purpose of authorizing Mestre to procure his release from any and all liability as a contractor in connection with the waterworks, and there is no proof that Mestre received notice of the revocation of the letter before he signed the agreement with Burnham."

"Ninth. Martinez exerted himself to obtain from the authorities of Havana the release of Runkle and the return of the deposit money in consideration of Runkle entering into the agreement with Burnham."

"Tenth. The right of action accruing to Burnham under the agreement was assigned by him to Candido Zabarte y Paris, and by the latter to Francisco G. Mediavilla."

From the facts thus found, the court then drew the following legal conclusions:

That the agreement of August 4, 1884, was assented to by Runkle through Mestre, who had full power, under the letter of attorney, to bind his principal. The consideration of the agreement on the part of Runkle was his release from all liability under his contract with the City of Havana, and the return of the deposit money, both of which purposes were accomplished through the instrumentality of Martinez.

Page 153 U. S. 222

Judgment was entered for the plaintiff for $19,087.36, with interest at the rate of 9 percent from August 4, 1884, to date of entry thereof.

Defendant excepted to the findings of fact and to the conclusions of law deduced therefrom, and brought the case, by error, here.

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