Bank of Missouri v. Scott
| Decision Date | 31 May 1827 |
| Citation | 1 Mo. 744 |
| Parties | BANK OF MISSOURI v. SCOTT. |
| Court | Missouri Supreme Court |
Evidence of money loaned cannot be received to support a count for money had and received.
ERROR FROM STE. GENEVIEVE CIRCUIT COURT.
The plaintiffs brought two several actions of assumpsit in the Circuit Court, against the defendant. The declaration, in each case, contains a count upon a promissory note, and a common count, for money had and received, &c. The suits were consolidated, and on the trial, the plaintiffs offered in evidence, promissory notes, as described in the declaration respectively, which notes were signed, “John Scott, by his attorney in fact, Joseph Bogy,” and endorsed in the same way. The defendant objected to the admission of the notes in evidence, without proving that said Bogy was attorney in fact, by the production of his power of attorney. The plaintiffs proved by said Bogy, by parol, that said Scott had given said Bogy a written power of attorney, for the purpose of signing and endorsing said notes, and that he did make and endorse said notes accordingly, but that said power of attorney was destroyed, or sent to the bank. The plaintiff further offered to prove, that the notes had been given for money which said Scott had previously borrowed from the plaintiffs. The court decided, that the power of attorney ought to be produced, or proof given that it was not in the power of the plaintiffs to produce it, before parol evidence of its contents could be received; and that the evidence of money loaned to the defendant, could not be received upon the count for money had and received; and gave judgment for the defendant, to reverse which the plaintiffs prosecute their writ of error in this court. The two points presented for the consideration of this court are: First. Did the Circuit Court err in rejecting parol proof of the authority of Bogy to give the notes sued on? Secondly. Can evidence of money loaned be given to support the count for money had and received?
Both of these questions were, as we conceive, correctly decided by the Circuit Court. It has been several times decided by this court, that where a note has been given by an agent or attorney, the authority of the agent or attorney must be proved. Here it was proven that Bogy acted under a written authority, which was the best evidence and ought to have been produced, or else the plaintiffs should have shown that the power of attorney had been lost or destroyed, or that it was in the...
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