Shepard v. McNail

• Decision Date: 22 January 1907
• Citation: 99 S.W. 494,122 Mo. App. 418
• Parties: SHEPARD v. McNAIL.
• Court: Missouri Court of Appeals

99 S.W. 494

122 Mo. App. 418

SHEPARD v. McNAIL.

St. Louis Court of Appeals. Missouri.

January 22, 1907.

Rehearing Denied February 5, 1907.

1. APPEAL—DISMISSAL—GROUNDS.

That there is nothing in the record showing or tending to show that defendant owes plaintiff anything is not a proper ground for dismissing plaintiff's appeal.

2. PRINCIPAL AND AGENT—DEATH OF PRINCIPAL —TERMINATION OF RELATION.

Where one gave an agent authority to collect certain accounts and to retain from the amount collected a sum previously due the agent, the agency was coupled with an interest, and the agent was entitled to retain amounts collected after the death of the principal, though he also received authority to make the collections from the administrator of the principal.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by C. G. Shepard against T. A. McNail. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

C. G. Shepard, for appellant. Farris & Oliver, for respondent.

BLAND, P. J.

The action is to recover $161.50, alleged to have been collected by respondent as appellant's agent. The case is here on a full transcript. On January 21, 1906, respondent filed a motion to dismiss the appeal on the ground that there is nothing in the record showing, or tending to show, respondent owes appellant anything. Even if the motion assigned a proper ground for dismissing the appeal, which it does not, the ground assigned is contradicted by respondent's own evidence. It appears from the record that A. L. Watson, a year or two before his death, had a store at Cooter, in Pemiscot county, Mo., at which he employed respondent as a clerk or helper. About eight months prior to his death, Watson moved his store to Holland, in the same county. After moving to Holland, Watson appointed respondent his agent at Cooter to collect store accounts due him from former customers at that place, and for that purpose delivered his account books to respondent. In January, 1904, Watson died intestate, and appellant was duly appointed administrator of his estate. A short time after appellant's appointment, respondent wrote him that Watson had placed his accounts in his hands for collection, and requested appellant to give him authority to continue the collections. Appellant gave respondent this authority, and he swore at the trial that, after receiving authority from appellant, he collected $161.50 of the accounts. Respondent introduced evidence tending to show that Watson was indebted to him for salary earned at the Cooter store, and placed the accounts in his hands with authority to collect the same and take said amount out of the collections. There is no evidence showing or tending to show the sum Watson was indebted to respondent. The issues were submitted to the court without the aid of a jury. No declarations of law were asked or given. The court found the issues for respondent, and rendered judgment accordingly.

As respondent testified he collected $161.50 of the accounts after...