Campbell v. Pope
| Decision Date | 20 December 1888 |
| Citation | 10 S.W. 187,96 Mo. 468 |
| Parties | Campbell, Appellant, v. Pope et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.
Reversed and remanded.
Leverett Bell for appellant.
The plaintiff's right to recover was not impeached. The original judgment was not paid nor satisfied. It is in full force and effect. The plaintiff had a lawful right to purchase the judgment. The amount paid by him for it is not material. It is sufficient that he is the lawful owner of it. The defendants have presented no grounds excusing them from liability on the appeal bond. The source from which the plaintiff derived the means to purchase the judgment is immaterial. The city of St. Louis is not the primary debtor in the judgment in the Grogan case. Its liability is secondary to that of the other defendants therein. No enforcement of the judgment can be had against the city of St. Louis until all remedies against the other defendants in the judgment are exhausted. Charter of St. Louis, art. 16 sec. 9.
Taylor & Pollard for respondents.
(1) The object and intent of the bond was not to protect the city but to insure Mary Grogan in getting her judgment. Since one of the joint judgment debtors equally liable to her has satisfied the judgment in full, the object and intent of the bond has been accomplished; and as the judgment has been discharged, no liability exists against the sureties. (2) The Pope Iron & Metal Company had a common corporate seal, and the bond in question was not executed under that seal, therefore it was void as to the principal and sureties. Wood's Field on Corp., secs. 252, 253; Thompson on Liab. of Officers of Corp. 100, 101; Sandford v. Tremlett, 42 Mo. 388; Southern v. M. B. A. 52 Cal. 192; Abbey v. Chase, 6 Cush. 54. (3) Assuming that the instrument sued on is a sealed one, then no legal title passed to plaintiff, since the alleged transfer is not under seal. The instrument making the transfer must be of as high a nature as the instrument transferred. Wood v. Partridge, 11 Mass. 490.
The record discloses the following facts: That on the twenty-third of March, 1882, one Mary Grogan recovered judgment in the St. Louis circuit court against a corporation, known as the Pope Iron & Metal Company, and a corporation named the Broadway Foundry Company, and the city of St. Louis, for thirty-five hundred dollars, for the death of her minor son, occasioned by the negligence of defendants; that an appeal from said judgment was prosecuted to the St. Louis court of appeals, where the judgment of the circuit court was affirmed, and from this judgment of affirmance, the said Pope Iron & Metal Company prosecuted an appeal to this court, which resulted in an affirmance of said judgment; that on taking said appeal from the judgment of the St. Louis court of appeals to this court, an appeal bond, of which the following is a certified copy, was given, to-wit:
The judgment thus obtained, was duly assigned by said Mary Grogan to George M. Stewart, and was by said Stewart duly assigned to Robert A. Campbell, the plaintiff in this suit, who is and was at the time of said assignment, the comptroller for the city of St. Louis, and who paid out of the funds of the city the sum of $ 4,287.50 to said Stewart therefor. It also appears that said Mary Grogan, on the twenty-third of December, 1885, by her certain writing, sold, transferred and assigned all her right and interest in said appeal bond to plaintiff Campbell, and it is upon this appeal bond that he sues the parties who executed the same, alleging in his petition that the Pope Iron & Metal Company has not paid said judgment or any part thereof, and asking judgment on said bond for the amount of said judgment, interest and cost.
The defendants denied the execution of the appeal bond and further set up the defense that the Mary Grogan judgment, by virtue of the payment made by Campbell out of the funds in his hands as comptroller of the city of St. Louis, was in law satisfied. A trial before the court resulted in a judgment for defendants, and the cause is before us on plaintiff's appeal therefrom.
On the trial, among other things, it was proved that R. C. Pope, at the time he signed the appeal bond, was president of the Pope Iron & Metal Company, and that as such, he signed the name of said company to said bond, and that he and Burton, who was also an officer of said company, signed the same as sureties. Pope, in his evidence, stated that he had not been authorized by the board of directors to sign said bond, and that the Pope Iron & Metal Company had a corporation seal.
It is claimed by respondents that the appeal bond in question, though signed and sealed as shown in the copy above given, was never executed by the Pope Iron & Metal Company, inasmuch as the seal of the corporation was not affixed thereto. Ang. & Ames on Corp. sec. 219.
While a seal of a corporation, affixed to a writing or contract executed by the proper officer of the corporation, is evidence that the contract or writing is a corporate act, and that the officer executing it did not exceed his authority, it seems to be nevertheless true, that if the officer executing the instrument for and in behalf of the company was authorized by vote or resolution to execute it, that such authorization would dispense with the necessity of affixing the corporate seal, inasmuch as such resolution or vote would as clearly, if not more so, indicate that the act was a corporate act, done by the authority of the corporation, as affixing the seal would indicate it.
"The acts of the board of directors, evidenced by a written vote, are as completely binding on the corporation, and as complete authority to their agents as the most solemn acts done under the corporate seal." 2 Kent's Com. 291; Field on Corp. sec. 283. "In general it may be laid down that not only the appointment, but the authority, of the agent of a corporation may be implied from the adoption or recognition of...
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