Anderson v. Volmer

• Decision Date: 31 October 1884
• Citation: 83 Mo. 403
• Parties: ANDERSON v. VOLMER, Appellant.
• Court: Missouri Supreme Court

83 Mo. 403

ANDERSON

v.VOLMER, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

REVERSED.

R. H. Field for appellant.

Notice to a person as an agent to bind one as principal must be to the agent in fact of the one for whom notice is intended, and it must be given while agency exists, and not, as was done in this case, Hayward v. National Insuranc Company, 52 Mo. 181; Golson v. Ebert, 52 Mo. 260; Haven v. Brown, 7 Greenleaf 421; Hubbard v. Elmer, 7 Wendell 446; Rev. Stat., sec. 3190. Agency must be proven, which was not done in this case. The mere giving notice to a person does not prove such person an agent. McGowan v. Railroad Co., 61 Mo. 533. The burden of proving agency was upon respondent. Cravens v. Gilliland, 63 Mo. 28. Agency cannot be shown by admissions of agent (as the court below held in excluding them), nor by act of agent. Craighead v. Nickel, 21 Mo. 404. Agency cannot be implied from person acting as agent without proof of knowledge or consent of the persons ought to be charged as principal. Craighead v. Nickel, supra; Golson v. Ebert, 52 Mo. 260. It was error to allow the witnesses to testify to the contents of the books kept of the accounts sued on. Such testimony was secondary to the books, and hence not admissible because the absence of the books was not accounted for. Bank v. Lonnergan, 21 Mo. 46; Ritchie v. Kinney, 46 Mo. 298. The evidence did not show, as erroneously found by the court, that the whole of the lumber charged in the bill here sued on was used in the building. The burden of proof was on plaintiff to show that his entire bill of lumber was used in the building, and the judgment cannot be sustained unless the evidence shows that more of the lumber in this bill was used in the building than was paid for. Simons v. Carrier, 60 Mo. 581; Schulenberg v. Prairie Home Institute, 65 Mo. 295. The statute requires that the account be verified. R. S., sec. 3176; Heinrich v. Soc., 8 Mo. App. 587; McWilliams v. Allan, 45 Mo. 573; Graves v. Pierce, 53 Mo. 423.

PHILIPS, C.

This is an action to enforce a mechanic's lien against the property of the defendant, Kate Volmer. Werner and Shinnick were the contractors, and the plaintiff furnished material. The petition is unobjectionable and the answer tenders the general issue. The case was tried by the court sitting as a jury. Verdict and judgment for plaintiff, from which the defendant has appealed to this court.

I. The first question presented by this record for determination is, as to the sufficiency of the notice given by plaintiff to defendant to effect the alleged lien. In order to subject the property of defendant to the lien of plaintiff for materials furnished to the contractors for the building, the statute (R. S. sec. 3190), provides that the lienor “shall give ten days notice before the filing of the lien * * * to the owner or agent, * * * that he holds a claim against such building, * * * setting forth the amount and from whom the same is due.” There is no pretense in this case that this notice was given the defendant in person. But the court found that notice was duly served on one S. N. Bonner, and that he was the agent of defendant. What is the evidence of the existence of this agency? I am unable to find from the record any declaration or act of the defendant admitting such agency. The evidence merely shows that the house was built for defendant. She was, during this time, residing in the state of Colorado, and the transactions in question were had in Kansas City, Missouri. Bonner paid on the contract some money to the contractors, and participated in the settlement with them for the work. He, also, stated that he was agent for defendant. But it is well settled law that an agency can not be established by the mere acts or declarations of the imputed agent, nor from the mere fact that he assumes to act as agent. Craighead v. Wells, 21 Mo. 404; Golson v. Ebert, 52 Mo. 260. The burden of proof as to the existence of the agency rests on the plaintiff. Cravens v. Gilliland, 63 Mo. 28.

While it is true that direct evidence of the agency may not be essential, but its existence may be inferred from facts and circumstances, yet such facts and circumstances certainly ought to be of that character which tend to show that the principal must have had some knowledge of the fact that the imputed agent was so acting in the principal's behalf, and that he did not disaffirm the act timely. But even if, in this case, the presumption could be indulged, that Bonner was acting for defendant in making the settlement and paying the contract money, the legal presumption, without more, would be that he was a special agent only to perform that particular office for defendant. It would not authorize the inference of a general agency, nor one for another purpose. As to such agent, the notice to him, to bind his principal, must have been given while the agency existed and not afterwards. Story on Agency, sec. 140, states the rule thus: “Notice to the agent, before the agency is begun, or after it has terminated, will not, ordinarily, affect the principal.” In Hayward v. Nat. Ins. Co., 52 Mo. 191, the court affirm this text: “The notice must be given to the agent while the agency exists, and it must refer to business which comes within the scope of his authority.” See McDermott v. R. R., 73 Mo. 516. In other words, once an agent not always an agent. An agent for one purpose is not an agent for every other purpose.

The plaintiff's evidence, through the witness Werner, was that he never knew of Bonner acting in any other matter for defendant than in making the settlement with him for the work done. The notice of the lien or claim was given to Bonner some time after the materials were furnished, and the settlement was made,...