Marshall v. Ferguson

Decision Date15 April 1902
Citation67 S.W. 935,94 Mo.App. 175
PartiesJOHN B. MARSHALL, Respondent, v. THOMAS D. FERGUSON, Appellant
CourtMissouri Court of Appeals

Appeal from Butler Circuit Court.--Hon. James L. Fort, Judge.

REVERSED AND REMANDED.

Phillips & Phillips and Dinning, Hamel & Dinning for appellant.

(1) It may be that this court will feel bound to adhere to the rulings it made on this petition when the cause was here before (78 Mo.App. 650-1), but, with great deference to said opinion, we yet insist that the petition does not state facts sufficient to constitute a cause of action, and that the law does not permit the inferences to be drawn, and blanks to be filled, to make said petition state a cause of action, as indicated by this court in its opinion heretofore rendered in this cause (78 Mo.App. 650); Sidway v. Missouri Land and Live Stock Co., 163 Mo. l. c. 373. (2) The court erred in giving instruction No. 1 for respondent. This instruction lays down the broad proposition of law that if Ferguson undertook, as the agent of plaintiff, to loan for plaintiff (respondent here) $ 213.45 to M. L. Freeman, and was directed to loan the same on the one-eighth interest in the fair grounds, and that he included in the deed of trust his (Ferguson's) note for $ 312.50, due to himself, without the knowledge or consent of plaintiff, then the plaintiff Marshall, had a right to ignore entirely said security, and look to Ferguson alone for the payment of the said $ 213.45 and interest thereon. This is not the law; but it has been respondent's theory in this case. He managed to get hold of this one-eighth interest for a very small amount, and is now seeking to do what this instruction says he has a right to do--that is, make Ferguson pay it all. (3) The court erred in giving respondent's instruction No. 2. This instruction declares in effect that if Ferguson included in the deed of trust a note for $ 312.50 of his own, without the consent and knowledge of respondent, and by reason of including said note in said mortgage, Marshall lost his money, "you should find the issues for the plaintiff Marshall, and you are further instructed that the burden of showing to your reasonable satisfaction that defendant had plaintiff's consent, or that plaintiff had knowledge and made no objection thereto rests upon defendant."

N. A Mozley, A. D. Hight and G. A. Spann for respondent.

(1) The doctrine of the common law is: "An agent with instructions is bound to regard them in every point; nor can he depart from them without making himself responsible for the consequences." 1 Parson Cont. (6 Ed.), p. 80. (2) Where the agent disregards the instructions of his principal the principal, as between he and the agent, may disregard the transaction entirely and hold the agent for money advanced or loss sustained. Am. and Eng. Ency. (1 Ed.), p. 369; Butts v. Phelps, 79 Mo. 302.

GOODE, J. Bland, P. J. and Barclay, J., concur.

OPINION

GOODE, J.

It was ruled by this court on a former appeal that the petition in the cause above entitled sufficiently stated a cause of action to let in evidence in support of its allegations over the oral objection of the defendant made at the outset of the trial; and as the defendant neither demurred nor moved for more definite averments, as he might have done, but merely urged the same objections on the second trial, we will disregard his assignment of error based on the alleged failure of the petition to state a cause of action. It would be unjust to permit the defendant to avail himself of that point now, when it was determined against him before and he has since omitted to take measures to compel a more particular pleading. Marshall v. Ferguson, 78 Mo.App. 645.

The action was brought to recover a sum of money advanced by Marshall to Ferguson, to be lent to M. L. Freeman, of Butler county, on the security of an undivided one-eighth interest in a parcel of land in Poplar Bluff, or near there known as the "Fair Grounds." At the inception of the transaction, Marshall himself was the owner of that interest and he and Freeman were considering a trade by which Marshall would exchange his said interest in the Fair Grounds for a sawmill owned by Freeman. Freeman needed to raise about two hundred and thirteen dollars in cash to pay off a note to the Missouri Trust Company, secured by a mortgage on a farm of his, before the trade could be effected; and Marshall got Ferguson, who was the agent of said trust company, to make a loan to Freeman of the sum required, he (Marshall) furnishing the money and directing Ferguson to take a deed of trust to secure it on the interest in the Fair Grounds property after it should be conveyed to Freeman. Ferguson himself held a mortgage on Freeman's farm, junior to the trust company's, to secure a note for three hundred and twelve dollars and fifty cents, and when he took the deed of trust to secure the money lent by Marshall (which loan was to be and was made in Ferguson's name and the note afterwards assigned to Marshall) he included in said deed his own note against Freeman; so that instead of the instrument being a lien on the one-eighth interest in the Fair Grounds for only two hundred and thirteen dollars in favor of Marshall, it was also a lien for three hundred and twelve dollars in favor of Ferguson.

The issue of fact between the parties is whether Ferguson's act in further securing his own note was done without Marshall's knowledge or by his authority, and there was a direct conflict in the evidence bearing on that issue. Marshall testified that he neither authorized the loading of his security with Ferguson's note, nor knew it had been done until Freeman had defaulted and he was about to foreclose, when he immediately taxed Ferguson with bad faith and notified him he must pay the loan. Ferguson swore the Fair Grounds tract was worth enough to secure both notes well and that Marshall authorized him to include his own note in the deed of trust.

The jury settled the facts in respondent's favor and we are only concerned with appellant's assignments of error; chiefly the rulings on the instructions requested.

The court charged the jury that if the appellant undertook to act as the agent of the respondent in making a loan to Freeman, and was directed to secure the loan by a deed of trust on an eighth interest in the Fair Grounds, but violated his instructions by including in the deed of trust the note to himself without the respondent's knowledge or consent, the respondent had the right to entirely ignore the deed of trust as security and look to the appellant for his money. Appellant's counsel contended, in opposition to the theory embodied in that charge, that if respondent recovered at all he should only recover the loss sustained by him after collecting as much of his debt as possible by enforcing the lien of the deed of trust, and submitted the following instruction setting out that view, which the court refused to give:

"The court instructs the jury that if you believe and find from the evidence that the one-eighth interest of the land described in plaintiff's petition was of value sufficient to secure the payment of both of the notes in the deed of trust described, then plaintiff can not recover herein, and your verdict should be for the defendant."

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