32 Mo.App. 1 (Mo.App. 1888), Nichols, Shepard & Co. v. Kern

Citation:32 Mo.App. 1
Opinion Judge:HALL, J.
Party Name:NICHOLS, SHEPARD & Co., Appellant, v. R. D. KERN et al., Respondents.
Attorney:Frank Sheetz, for the appellant. E. J. Broaddus, for the respondents.
Case Date:July 02, 1888
Court:Court of Appeals of Missouri
 
FREE EXCERPT

Page 1

32 Mo.App. 1 (Mo.App. 1888)

NICHOLS, SHEPARD & Co., Appellant,

v.

R. D. KERN et al., Respondents.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Livingston Circuit Court. --HON. JAMES M. DAVIS, Judge.

AFFIRMED.

The case is stated in the opinion.

Frank Sheetz, for the appellant.

(1) The written agreement between defendant Blackhurst and Jacobs was no defence to the action of plaintiff and should not have been admitted in evidence, because Jacobs had no authority to make it. Benny v. Rhodes, 18 Mo. 149; Palmer v. Hatch, 48 Mo. 585; Wheeler v. Givan, 65 Mo. 89. (2) His authority is shown and limited by the contract read in evidence by defendant, between Jacobs and Nichols, Shepard & Co. State v. Bank, 45 Mo. 528; Bank v. Schaumberg, 38 Mo. 228; Schell v. Stephens, 50 Mo. 379; Klosterman v. Loos, 58 Mo. 290. (3) Because said agreement between defendant and Jacobs was the individual agreement of W. A. Jacobs and bound him only. Chouteau v. Paul, 3 Mo. 186; Overton v. Stephens, 8 Mo. 622; Schell v. Stephens, 50 Mo. 375; Klosterman v. Loos, 58 Mo. 290. (4) Notice to Jacobs was inadmissible. He was not at his place of business, nor engaged in the line of his employment at the time notice was sent, and the evidence was immaterial and foreign to the issue. (5) Answer states no facts constituting any defence to the action of plaintiff. It does not state that Jacobs had any authority to make the agreement with defendant Blackhurst, nor that there was any consideration for the said agreement.

E. J. Broaddus, for the respondents.

(1) Notice to Jacobs, the agent, was notice to appellant, the principal. See Hayward v. Ins. Co., 52 Mo. 181; Bier v. Blume, 80 Mo. 179. (2) In order to bind the principal it is not necessary that the contract should be executed in the name and as the act of the principal. See Story on Agency, secs. 160 a, 161, and cases there cited. See also Briggs v. Menchon, 56 Mo. 466. (3) The evidence shows that Jacobs was at the time acting for his principal. Respondents could not recover damages of the agent, because there was no consideration and no mutuality.

HALL, J.

The plaintiff, as a corporation under the laws of the state of Michigan, instituted this suit against the defendants on two promissory notes, executed by them and payable to the plaintiff's order. The two Kerns made no defence and judgment was rendered against them.

The petition was in two counts. To both counts the defendant Blackhurst made the same answer which is as follows:

" The defendant Wm. Blackhurst for his answer to the petition herein admits the execution of the note therein described, but he further states that as an inducement for the execution...

To continue reading

FREE SIGN UP