Perkins v. Boothby
Citation | 71 Me. 91 |
Parties | FORDYCE B. PERKINS v. ANSEL N. BOOTHBY and others. |
Decision Date | 09 March 1880 |
Court | Maine Supreme Court |
THIS was an action of assumpsit upon five promissory notes. The first, dated November 8th, 1875, for $140, payable on demand with interest; second, dated February 3d, 1876, for $250 payable on demand with interest at seven per cent.; third dated September 16th, 1876, for $145, payable on demand with interest; fourth, dated September 22d, 1876, for $900 payable on demand with interest; and fifth, dated January 17th, 1877, for $500, payable on demand with interest.
The action was referred, and the report of the referee makes a part of the case, and " is submitted to the full court to be acted upon with same powers as this court." The plaintiff was allowed to amend his writ by filing a count for money had and received.
Report of referee.--
R. P. Tapley and J. M. Goodwin, for the plaintiff, cited: Story Agency, c. 5, § 45, c. 6, § § 84, 85, 87, 89, 92, 95, 104; 1 Bell's Com. Law, 478; 1 Addison Contr. § 56; Houghton v. Nash, 64 Me. 477; 1 Addison Contr. 50; 3 Ibid. 513; U. S. Dig. Tit. Money Received, § § 5, 8, 11, and cases cited; Mason v. Waite, 17 Mass. 560; 2 Denio 91; Lewis v. Sawyer, 44 Me. 332; Merchants' Bank v. State Bank, 10 Wall. 604; Angell & Ames Corp. 599, 600.
H. Fairfield, for the defendant, cited: Story Agency, § 119, a; § 69 and note 2; 1 Pars. Notes & Bills, 107; 1 Pars. Contr. 49, 51, note h.; 9 Port. (Ala.) 428; 6 Blackf. (Ind.) 369; 10 Johns. (N. Y.) 114; N. Y. Iron Mine Co. in Error v. First Nat. Bank of Negaunee, opinion S. J. C. of Michigan, October, 1878, reported in Michigan Lawyer for October, 1878, p. 85. The plaintiff lays great stress upon the fact that this money was received by Cleaves and appropriated by him for the payment of goods, which went into our store. But this is not an equity matter, and the question is not, Who received the benefit of the money borrowed? but only, Was Cleaves authorized to borrow money? or, Was the plaintiff justified in believing he had that authority? The manner in which Cleaves appropriated the money, does not change the law of agency.
Upon the facts found by the referee in this case, it must be held that the agent, Cleaves, had no authority to give the notes of the defendant company, in order to procure loans of money. As the notes in suit were given by the agent for that purpose, it would seem that the plaintiff cannot recover upon them.
But it appears by the report of the referee, that, " the money for which these notes were given was received by Mr. Cleaves, the company's agent, and by him appropriated to the payment of the debts of the company, contracted for goods previously purchased." The directors of the company had no knowledge of such loan and appropriation at the time they were made, but by the act of their agent in so applying moneys hired of the plaintiff, certain legal liabilities against the defendants have been discharged. The case presents the question, whether the defendants can knowingly retain the benefit of money so hired and used, and at the same time legally refuse to repay the loans.
In considering this question, it may properly be assumed from the statement of the case, that the agent had no more authority to hire money upon the credit of the company, than he had to effect such loans by issuing the notes of the company therefor; --that the defendants had no knowledge of the loans or the notes, until after they had ceased to do business as a joint stock company, when they repudiated both. Such repudiation, however, was apparently a declaration only not an act. The appropriation by the agent of the loans to the payment of the debts of the company remained effective. The directors did nothing to defeat it. The debts were discharged. The acts of the agent in hiring and in appropriating the money were beyond his authority and without the knowledge of the principals. The only ground of liability is the...
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