The Gregmoore Orchard Company v. Gilmour

Decision Date06 November 1911
PartiesTHE GREGMOORE ORCHARD COMPANY, Appellant, v. J. T. GILMOUR, Respondent
CourtMissouri Court of Appeals

Appeal from Howell Circuit Court.--Hon. W. N. Evans, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

M. E Morrow for appellant.

(1) The purchaser at execution sales must look to the judgment execution and levy. If all these are valid, his title will be protected. If void, his title may be attacked collaterally. Morrison v. Dent, 1 Mo. 246; Hewitt v Weatherly, 57 Mo. 276; Saunders v. Rains, 10 Mo. 771; Janney v. Spedden, 38 Mo. 395; Abbot v. Sheppard, 44 Mo. 273; Howard v. Thornton, 50 Mo. 291; 17 Cyc. 1286, 1308; Gray v. Hawes, 8 Cal. 562; Wooters v. Joseph, 137 Ill. 113. (2) Neglect to speak or act will not raise an estoppel in pais, when the party against whom it is invoked did not know the facts which, if known, made it his duty to speak. Galbreath v. Newton, 30 Mo.App. 380. (3) And the party against whom it is invoked must have been fully apprised of all the facts before estoppel will work against him. It is not sufficient that he had knowledge of only a part of the material facts; or that he had received such word and notice as would put "a reasonably prudent man upon inquiry," as the jury was told in this case in respondent's instruction No. 2. Foley v. Boulware, 86 Mo.App. 680; 2 Herman on Estoppel, secs. 944, 1064; Burke v. Adams, 80 Mo. 514; Sharp v. Bank, 87 Ala. 650; Hequembourg v. Edwards, 155 Mo. 514; Tennent v. Ins. Co., 133 Mo.App. 365. (4) The silence, words or acts, to be the basis of an estoppel, must have been made with an intention to mislead and deceive. Blodgett v. Perry, 97 Mo. 263; Burke v. Adams, 80 Mo. 504; 16 Cyc. 1205. (5) The pointing out of property to an officer for seizure by the servant of the owner, will not estop the true owner from setting up his claim. Oil Co. v. Richmond, 6 Bosw. (N. Y.) 213. (6) No estoppel arises where the misrepresentation is founded upon ignorance or innocent mistake. Frederick v. Railroad, 82 Mo. 402; Huffman v. Nixon, 152 Mo. 303; Burk v. Adams, 80 Mo. 504; Acton v. Dooley, 74 Mo. 63. (7) In order that the real owner of personal property may be estopped to assert his title against one who has dealt with the apparent owner on faith of his claimed and apparent ownership of, or authority over it, something more is required than mere possession on the part of the apparent and claimed owner. There must be a fraudulent or deceptive purpose in view on the part of the true owner. Blodgett v. Adams, 97 Mo. 263; Burke v. Adams, 80 Mo. 504; Freeman v. Flood, 16 Ga. 528; Everson v. Sinclair, 110 Iowa 135; Peters Box Co. v. Lesh, 119 Ind. 98; Van Horn v. Overman, 75 Iowa 421; Craig v. Ward, 9 Johns, (N. Y.) 197; 16 Cyc. 776. (8) The principal is estopped to deny the authority of an agent having limited powers unless the principal has fraudulently authorized the agent to make the alleged misrepresentations. Bigelow on Estoppel, 598; Lumber Co. v. Kreeger, 52 Mo.App. 418; Helm v. Railroad, 98 Mo.App. 425. (9) Knowledge that comes to an officer of a corporation through his private transactions and not in his official capacity, is not knowledge to the corporation, even though he is the managing agent of the corporation at the time of obtaining the knowledge. Invest. Co. v. Bruce, 132 Mo.App. 257; Bank v. Froman, 129 Mo. 427; Benton v. Bank, 122 Mo. 339; Bank v. Lovitt, 114 Mo. 519; Johnson v. Shortridge, 93 Mo. 227; Brass Co. v. Webster, 37 Mo.App. 145; Bank v. Fritze, 76 Mo.App. 356. (10) An instruction which directs a verdict for one of the parties, to be free from prejudicial error, should contain all the ingredients essential to the right to a recovery under the pleadings and evidence. It should not single out certain facts which may have a tendency to establish one side. It should submit the case upon the theory of both parties. Bolles v. Railroad, 134 Mo.App. 704; Percell v. Railroad, 126 Mo.App. 43; Budd v. Hoffheimer, 52 Mo. 297; Boothe v. Log, 83 Mo.App. 601; Hohstadt v. Dagg, 50 Mo.App. 240. (11) Instructions which single out facts for emphasis, or leave out of view other relevant facts, are erroneous. Gibler v. Railroad, 129 Mo.App. 102; Chouquette v. Barada, 28 Mo. 491; Railroad v. Stock Yards, 120 Mo. 541; Mead v. Brotherhood, 30 Mo. 201; Bank v. Metcalf, 29 Mo.App. 384; Crews v. Lackland, 67 Mo. 619; Imboden v. Trust Co., 111 Mo.App. 242.

J. L. Van Wormer and J. N. Burroughs for respondent.

(1) It was not necessary to prove the agency of Billings by direct evidence, as the agency may be implied or inferred from the words and conduct of the parties and the circumstances of the case and may not be established by direct proof of that fact. Mitchen v. Dunlap, 98 Mo. 418, 11 S.W. 989; Hull v. Jones, 69 Mo. 587; Brooks v. Jamison, 55 Mo 505; 31 Cyc. 1217; Reynolds v. Railroad, 114 Mo.App. 670, 90 S.W. 100; Johnson v. Husley, 115 Mo. 513, 22 S.W. 492; Phelps v. Mfg. Co., 129 Mo.App. 396, 107 S.W. 471; Sandifer v. Lynn, 52 Mo.App. 553; Padley v. Catterlin, 64 Mo.App. 629; Nelson v. Railroad, 66 Mo.App. 647; Harris v. Board of Trade, 81 Mo. 137. (2) It is a general rule when a principal by any acts or conduct has knowingly caused or permitted another to appear to be his agent, either generally or for a particular purpose, he will be estopped to deny such agency to the injury of third persons who have in good faith and in the exercise of reasonable prudence dealt with the agent on the faith of such appearances. Bank v. Ins. Co., 145 Mo. 127, 46 S.W. 615; Summerville v. Railroad, 62 Mo. 391; De Baun v. Atchison, 14 Mo. 543; Advt. Co. v. Wanamaker, 115 Mo.App. 270, 60 S.W. 737; Hefferman v. Boteler, 87 Mo.App. 316; Suddarth v. Lime Co., 79 Mo.App. 585; Haubit v. Mill Co., 77 Mo.App. 672; Morse v. Diebald, 2 Mo.App. 163; 31 Cyc. 1235; Hackett v. Van Frank, 105 Mo.App. 384, 79 S.W. 1013; Horn v. Drew, 83 Tex. 77, 18 S.W. 434. (3) The law imputes to a principal and charges him with all notice or knowledge relating to the subject-matter of the agency, which the agent acquires or obtains while acting as such agent, and within the scope of his authority. Mechem on Agency, sec. 721; State ex rel. v. Stitlinton, 51 Mo.App. 257; Fowler v. Randall, 99 Mo.App. 407, 73 S.W. 931. (4) And this whether the agent has disclosed his knowledge or information to the principal or not. The law conclusively presumes he had done this and charges the principal accordingly. The Distilled Spirit, 11 Wall 367; 20 Law. Ed. 167; Hickman v. Greene, 123 Mo. 165, 22 S.W. 455. (5) The plaintiff corporation was charged with all the notice and knowledge possessed by Billings and Courrier or either of them as a principal is charged with all notice or knowledge relating to the subject-matter of an agency, which comes to the agent. Fowler v. Randall, 99 Mo.App. 407; Edwards v. Ins. Co., 100 Mo.App. 695; Kyle v. Goff, 105 Mo.App. 672. (6) The business of Courrier and Billings was to care for and protect the property in their charge and custody and corporations are charged with knowledge of its agents in transacting business in its charge. Wheeler v. Stock Yards, 66 Mo.App. 260. (7) Notice of facts to an agent is constructive notice to the principal himself, when it arises or is at the time connected with the subject of the agency. Mechem on Agency, sec. 140; Wheeler v. McGiven, 86 Ala. 898; Bank v. Lovett, 114 Mo. 579; Meyer v. Old, 57 Mo.App. 639; Hyatt v. Clark, 118 N.Y. 536; Wheeler v. Stock Yards, 66 Mo.App. 272. (8) Where a corporation has permitted one of its agents to so act with reference to the affairs of the corporation as to lead a third party to suppose that said act was within the scope of the powers conferred upon him the corporation will be bound, though the agent has in fact exceeded his delegated powers. Law. Rep. Co. v. Grain Co., 135 Mo.App. 15, 115 S.W. 475; Rice v. Groffman, 56 Mo. 434; Kingsley v. Fitts, 51 Vt. 414; St. Louis Gunning Co. v. Wanamaker, 115 Mo.App. 287; Railway v. Railway, 110 Mo.App. 330; Reynolds v. Railroad, 114 Mo.App. 300. (9) A third person who fails to assert his title or right at a forcelosure sale will be estopped to assert his claim against one who in ignorance of the facts has relied on his conduct. Bradley v. Luce, 99 Ill. 234; Walker v. Mottomley, 110 Mich. 127, 67 N.W. 1083; Wilson v. Sheffbillich, 30 Minn. 422, 15 N.W. 876. (10) By clothing Courrier with apparent title to the property in question, plaintiff cannot now claim same to the injury of defendant, an innocent purchaser, for value for the owner of property may, by clothing another with apparent title thereto, or with apparent authority over it, estop himself to deny such title or authority. George v. Summerville, 153 Mo. 7, 54 S.W. 491; Reischeck v. Klingenhoefen, 91 Mo.App. 430; Snodgrass v. Emory, 66 Mo.App. 462; Bank v. Waterhouse, 70 Conn. 76; Delfosse v. Bank, 98 Ill.App. 123. Where a person stands by and sees another about to commit or in the course of committing an act of infringing upon his rights and fails to assert his title or right, he will be estopped, afterwards, to assert it. Price v. Hallett, 138 Mo. 561, 38 S.W. 451; Oliver v. Beard, 72 Mo.App. 181; State v. Staed, 65 Mo.App. 487; Dameron v. Jamison, 143 Mo. 483, 45 S.W. 258; Ingals v. Ferguson, 138 Mo. 358, 39 S.W. 801. (12) Plaintiff, the owner of the property, stood by that is, had knowledge of the fact that a third person was selling it under claim of title, without asserting its own title or giving the purchaser any notice thereof, is estopped as against such purchaser from afterwards asserting his title. Guffey v. O'Reilly, 88 Mo. 418; Skinner v. Scouse, 4 Mo. 93; Reiss v. Hanchett, 141 Ill 419, 31 N.E. 165; McConnell v. People, 84 Ill. 583; Morford v. Bliss, 12 D....

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