Henderson v. Morse

235 F. 518, 149 C.C.A. 64, 1916 U.S. App. LEXIS 2211

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 28, 1916
• Docket: Nos. 169 and 4625
• Status: Published

Opinion

ADAMS, Circuit Judge.

On January 26, 1915, the Cogswell Candy Company, a corporation of Missouri, engaged in the retail candy business, had a fire at its place of business, resulting in the destruction of considerable property, upon which it carried insurance in five insurance companies, aggregating $9,000. Ruth Cogswell was its president, and W. R. Cogswell its secretary and treasurer. Shortly after the fire occurred W. R. Cogswell signed a contract, as secretary and treasurer of the company, employing the appellant, Devereaux Henderson, an attorney at law, to collect the claims of the candy company against the insurance companies, for 15 per cent, of the total sum collected. On the same day the president objected to the contract, and soon thereafter the board of directors of the company repudiated it. Henderson, as soon as the contract was signed, entered upon the discharge of the duties of his employment, but did little, if any, work before he was advised of the disapproval of his contract. On January 28, 1915, the company was adjudicated a bankrupt, and John J. Morse, the appellee, chosen trustee. He collected, without the assistance of Mr. Henderson, $5,354.51 from the insurance companies, and Henderson presented a claim against the estate-in bankruptcy for $803.40, the same being 15 per cent, of the amount so collected by the trustee. This claim was resisted by the trustee on the ground that the contract was made without authority. Much evidence was produced by the trustee, tending to show that Cogswell, as secretary and treasurer of the company, had no authority to make the contract, that the president of the company alone had that authority, and that the compensation for the little work and labor required to be done, as stipulated in the contract, was so grossly excessive as to indicate bad faith. Evidence to the contrary was produced by the claimant. At the conclusion of it all the referee made an order disallowing the claim. The district judge, on petition for review, affirmed the order. Henderson now brings the case here on appeal, and also by original petition to revise.

[1] As the case involves a consideration and finding of facts, we must dispose of it on the appeal, and not on the petition to revise.

[2] We have carefully read all the evidence and the briefs and arguments of counsel, and find that there is substantial proof sustaining the order made.

The rule is well settled in this court that the findings of a referee in a case like this, concurred in by the court on petition for review, are presumptively correct, and will not be disturbed by an appellate court unless some obvious error of law or serious mistake in considering the evidence has occurred. As we are unable to find any such error or mistake, and think the order is well sustained by the proof, it must be affirmed, and the petition to revise dismissed.