Mitchum v. Dunlap
| Decision Date | 24 June 1889 |
| Citation | 11 S.W. 989,98 Mo. 418 |
| Parties | Mitchum, Appellant, v. Dunlap |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. J. P. Strother, Judge.
Affirmed.
Jackson & Montgomery for appellant.
(1) The court erred in admitting the alleged statements of Short to the defendant, as there was no proof that Short was the agent of plaintiff. Alexander v. Rollins, 14 Mo.App. 109; s. c., 84 Mo. 657; Peck v. Ritchey, 66 Mo. 114; Summer v. Sanders, 51 Mo. 89. (2) For the same reasons the court erred in refusing the first and second instructions asked by plaintiff. (3) The court erred in giving the defendant's instructions because there was no evidence on which to found them. There was no evidence of the creation of an agency in advance, and especially was there no evidence of any ratification afterwards. Winsor v. Bank, 18 Mo. App, 665.
Bothwell & Jaynes for respondent.
(1) The court properly permitted defendant to testify as to the acts and agreements of U. F. Short in managing and settling plaintiff's business with defendant. There was abundant evidence to prove that Short was plaintiff's agent, and the court properly left to the jury the questions raised by the evidence and the pleadings. (2) The court properly refused the first and second instructions asked by plaintiff as they would have excluded from the jury material issues presented by the evidence and pleadings. Whether or not Short was authorized to act as agent for plaintiff was a question for the jury. Lumber Co. v. Warner, 93 Mo. 374; Clark v. Hammerle, 27 Mo. 55; Mead v Brotherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 240.
This was a suit on a promissory note for $ 2,070 made by the defendant and payable to the plaintiff dated January 5, 1875 and due the first of January, 1876. Defendent executed another note of the same date, amount and due at the same time, payable to U. F. Short. To secure these two notes he executed a deed of trust of even date upon two tracts of land, one containing thirty-seven acres and the other one hundred and sixty acres.
The defense is that in the month of January, 1876, and after the notes had matured and the thirty-seven acres had been advertised for sale under the deed of trust, Short, acting for himself and the plaintiff, agreed with defendant that if he would not bid or procure any one to bid at the sale, they would buy the property at that sale and then release him from the payment of any balance due on the notes, and that defendant should become the tenant of Short and plaintiff. Defendant alleges that he accepted the proposition, and pursuant thereto Short and plaintiff purchased the thirty-seven acres, and he took a lease from them.
There is abundant evidence in the record tending to show that Short, acting for himself and professing to act for the plaintiff, made the alleged agreement and purchased the thirty-seven acres in pursuance thereto. As proof of this agreement the statements and declarations of Short made at the date of the trustee's sale were put in evidence. To this evidence the defendant objected because there was no proof that Short was the agent of plaintiff or had any authority to make the agreement for plaintiff, and this objection was renewed by way of an instruction, asked by the plaintiff which was refused.
The law is well settled that the declarations of one, who assumes to act as the agent of another, are not admissible to establish the agency. Peck v. Ritchey, 66 Mo. 114; Whart. on Ev. (2 Ed.) sec. 1183; Sumner v. Saunders, 51 Mo 89. But the authority of the agent need not be proved by an express contract of agency; it may be proved by the habit and course of business of the principal. Franklin v. Ins. Co., 52 Mo. 461; Brooks v. Jameson, 55 Mo. 505. So too the agency and extent of the...
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