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.
MR. JUSTICE WHITE, after stating the case, delivered the opinion
of the Court.
1. By not resting on his motion for a nonsuit, and by thereafter
offering his own evidence, the defendant waived his motion, and the
overruling thereof cannot be assigned for error here.
Union
Pacific Railway v. Daniels, 152 U. S. 684, and
authorities there cited.
2. The exceptions taken during the progress of this trial are
numerous. We will content ourselves with examining the merits of
those which have been specifically assigned as error.
The plaintiff offered in evidence an account, growing out of the
purchase and protest of the draft and kept between Martinez and
Burnham, which was objected to on the ground that it was
res
inter alios.
Runkle, Gilson, Lyles, and Maddison & Co. were parties to
the waterworks contract. In order to furnish the $64,000, which was
to be deposited with the City of Havana, Martinez bought a draft
drawn by an agent of Maddison & Co. on that firm in London.
This draft, on being endorsed and guarantied by Martinez, was
discounted by Burnham, who forwarded it to London for collection.
There it was protested for nonpayment. The result was that Burnham
held Martinez and Maddison & Co. on the draft, which was taken
supra protest by Baring Brothers at the request of
Burnham. Maddison &
Page 153 U. S. 223
Co. thereupon deposited with Burnham, as collateral to secure
their obligation on the draft, certain shares of the "Charnwood
Forest Railroad Company." Inasmuch as Runkle appears, both in the
contract sued upon and in the power of attorney upon which the
contract is predicated, as the assignee of Maddison & Co. and
as standing in their place and stead, we think it clear that the
account was not
res inter alios as to him. He represented
Maddison & Co., and held their rights, and therefore the
account was as much admissible against him as it would have been
against the firm.
3. For the purpose of showing that the power of attorney under
which Mestre acted as the agent of Runkle had been revoked, the
defendant offered a series of telegrams addressed to Olcott, the
attorney at law of Runkle, in New York, which read as follows:
"Havana, July 23, 1884"
"To Olcott, 35 Broadway, N.Y.:"
"Telegraph if power is coming tomorrow steamer."
"Mestre"
"Martinez"
"Havana, July 18, 1884"
"To Olcott, 35 Broadway N.Y.:"
"The powers received are insufficient. It is urgent to send by
tomorrow's steamer new Spanish power, in Spanish, from Runkle,
Lyles, Gilson, and Maddison & Co., to Martinez, Mestre,
confirming the power of March 6th and June 26th, amplifying them
specially, to cancel the contract to loan, to accept return of
deposit, giving common council liberty of action, and to execute a
general release; all well explained."
"Mestre"
"Martinez"
"Havana, July 22, 1884"
"To Olcott, 35 Broadway, N.Y.:"
"Send, anyhow, first steamer, power according telegram
eighteenth."
"Mestre"
"Martinez"
Page 153 U. S. 224
"To Runkle, Lyles, Gilson, care Olcott, 35 Broadway, N.Y.:"
"I urge forward pending powers. I protest against damage
delay."
"Martinez"
These telegrams were rejected on the ground that they had not
been properly proved. Whether their rejection was warranted is
unnecessary to be considered. The telegrams called for a
confirmation of the existing power, and not for its revocation. If
they had been admitted, they could not have affected the question
of the revocation of the power. Their rejection being immaterial to
the result, no reversal for error in this particular can be had.
Cavazos v.
Trevino, 6 Wall. 773;
Railroad
Co. v. Pratt, 22 Wall. 123;
Home Insurance Co.
v. Baltimore Warehouse Co., 93 U. S. 527;
Mining Co. v. Taylor, 100 U. S. 37.
4. Martinez was asked whether, pending the negotiations in
Havana for the settlement of the transactions out of which the
present contract grew, he had exacted from Mestre, agent of the
defendant, any agreement as to the debt due to Burnham as a part of
the final adjustment. This question was objected to on the ground
that it was an attempt to show the assumption by parol of an
obligation when such obligation, if it existed, must result from
the written contract. We think the objection was untenable. The
question was asked the witness not for the purpose of proving a
liability on the written contract, but in order to show the
relations existing between the parties at the time the authority
given by the power of attorney was acted on. The obligation, of
course, must result from the text of the written contract, or by
necessary implication therefrom. Testimony, however, was admissible
to show the condition of affairs at the time the agent acted, not
in order to vary or change the written contract, but to throw light
upon the situation.
Le Roy v.
Beard, 8 How. 451.
5. The numerous other exceptions to the admissibility of
evidence found in the record are, we think, not well taken. We have
considered them all. The requests for findings made by the
defendant upon the whole case, as we have seen, were
Page 153 U. S. 225
as follows:
"First, that it does not appear that Mestre had any authority to
assume an obligation on the part of the defendant; second, that the
contract of August 4, 1884, does not impose any liability upon the
defendant."
These requests involved both questions of law and fact, and were
refused, and exceptions were reserved to their refusal. The
findings of fact made by the court below are binding here if there
be any evidence to support them.
St. Louis v. Rutz,
138 U. S. 226.
It is contended that there is no evidence to show that the power
of attorney which is relied on was an existing power at the time
the contract was signed by Mestre as Runkle's agent. This position
is not supported by the record. True, there is evidence tending to
show that Mestre, the agent of Runkle in Havana, requested enlarged
powers from Runkle, and there is also evidence tending to show the
arrival at Havana, on the day on which the contract was made, of an
instrument conferring the enlarged powers which Mestre deemed
desirable to justify him in dealing with the City of Havana. There
is, however, no evidence that the second power, if received,
revoked the power which is in evidence. As to the letter which
Runkle wrote to Mestre, and which, it is contended, was a
revocation of the power, its contents imply the very reverse. There
was certainly no reason why Runkle should have said to Mestre that
he "would like" a particular provision as to the Maddison & Co.
liability inserted in the contract unless the agent had authority
to deal with reference to this matter. Indeed, although Runkle and
Olcott, his attorney, were both examined, and although they both
referred to the alleged new power of attorney, their testimony
seems sedulously to avoid any statement that the new power revoked
the power of June 25th. If the new power of attorney was sent, and
revoked the one relied on here, Runkle or his attorney could have
dispelled all doubt by offering it in evidence or by testifying as
to its contents. Their silence must necessarily make against them
on the question of revocation. Mansfield, J., in
Roe v.
Harvey, 4 Burrows 2487. The doctrine that the production of
weaker evidence when stronger might have been produced lays the
producer open to the suspicion
Page 153 U. S. 226
that the stronger evidence would have been to his prejudice was
expressly adopted in the case of
Clifton v.
United States, 4 How. 242.
This leaves only for consideration the question of whether the
power authorized the contract with Burnham, and whether that
contract bound Runkle for the debt sued on. It will be observed
that the power of attorney expressly designates Runkle as the
assignee of Lyles and Gilson, and the "transferee" of Maddison
& Co., and then authorizes the agent
"for me, and in my name, place, and stead, to ask, demand,
collect, and receive such sum or sums of money and property of all
or any kinds to which, in any capacity aforesaid, I have, or may
have, the right or claim or demand, under or in connection with the
contracts for the loan and waterworks in the Island of Cuba, made
in consequence of the public bidding therefor in the City of
Havana, in the Island of Cuba, on the 18th day of March, 1882, . .
. to compound and compromise all such claims as I may have
aforesaid, . . . and to obtain my release from all liability as one
of the contractors in connection with the said loan and
waterworks."
The contention is that this power, while it authorized the agent
to enforce any demands which Runkle may have had, did not authorize
him to assume an obligation on behalf of Runkle. The finding below
is that, at the time the power was exercised, it was necessary that
the agent, in order to obtain his principal's discharge by the City
of Havana, should settle the Martinez-Burnham liability.
In addition to these findings, the face of the power of attorney
indicates the necessity of the agent's action in order to carry out
the purposes of the power. The power itself states that Runkle is
the assignee or "transferee" of all those who had been parties with
him to the waterworks contract. It represents him as the
"transferee" of Maddison & Co., and as entitled to all of
Maddison & Co.'s rights. We have seen that Maddison & Co.
were bound, with Martinez, to Burnham, on the draft which Burnham
had discounted, and which was protested, and that the stock of
Maddison & Co. was pledged to secure payment of the draft. A
settlement of Runkle's
Page 153 U. S. 227
relations, as the assignee of Maddison & Co., necessarily
included an adjustment of the debt of Burnham under the very terms
of the power of attorney. This power was evidently executed not
alone for the purpose of adjusting the waterworks contract with the
City of Havana, but also with the object of arranging the debt due
to Burnham, back of which was the stock which had been pledged by
Maddison & Co. and which belonged to Runkle as their
assignee.
We now come to the consideration of the contract itself, which,
it is contended, did not justify the conclusion that Runkle had
assumed the indebtedness to Burnham. The contract recites the
drawing of the draft upon Maddison & Co., the endorsement by
Martinez, and the protest. It credits the receipt from the City of
Havana of the $64,000, which had been deposited on account of the
loan and waterworks contract, and states a balance due on the draft
to Burnham. In stating the balance thus due, it "recognizes" Runkle
as the assignee, binds Burnham to place the Charnwood Forest
Railroad stock at the disposal of Runkle upon the payment of the
debt, and binds him also, in the event of the sale of the stock and
the application of the proceeds thereof to the debt, to pay over to
Runkle any balance that might remain. It is insisted that this
contract does not make Runkle ultimately liable for any deficiency,
and that therefore the contract imports no debt on his part. This
claim necessarily contradicts the finding of the court below, which
is that Runkle had assumed responsibility for the balance, and it
also contradicts the contract itself. The stock was not primarily
Runkle's, but Maddison & Co.'s. Any dealing with Runkle, and by
Runkle, as owner of the stock and as assignee of Maddison &
Co., imported that Runkle had succeeded to the claims of Maddison
& Co., and, by fair inference, to all their obligations with
reference to this part of the transaction. Indeed, the careful
manner in which the contract states the drawing of the draft, its
protest, and the transfer by Maddison & Co. to Runkle, seems to
have been intended to emphasize the fact that Runkle, in acquiring
the rights of Maddison & Co., had put himself in their place
and stead. That Runkle was the
Page 153 U. S. 228
general assignee of Maddison & Co., and considered himself
as not only entitled to their rights, but also as the
representative of their obligations in connection with the loan and
waterworks contract, results from the terms of the power of
attorney, in which he authorizes the agent not only to acquire
Maddison & Co.'s rights but to stipulate for the discharge of
their obligation. In other words, the contract, read in connection
with the terms of the power of attorney, leaves no doubt that
Runkle was dealing and treating in the capacity of a person who was
not only entitled to the rights, but was also subject to the
liabilities of all the original parties to the loan and waterworks
contract. This view is strengthened by the fact that although
Runkle testified on the trial, the assignment from Maddison &
Co. to him was not offered in evidence nor even referred to. The
failure to produce it or to testify in reference to it when its
contents were peculiarly within the knowledge of Runkle justifies
the presumption that its provisions would have been unfavorable to
Runkle's position.
Judgment affirmed.
