Bennett v. Potashnick
| Decision Date | 07 January 1924 |
| Citation | 257 S.W. 836,214 Mo.App. 507 |
| Parties | JAS. E. BENNETT, et al., Appellants, v. SAM POTASHNICK, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Scott County Circuit Court.--Hon. Frank Kelly Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Harry C. Blanton for appellant.
(a) A check executed in the same manner as the one in controversy is admissible in evidence to show agency even though plaintiff had no knowledge of such check at time of transaction in controversy. Sharp v. Knox, 48 Mo.App. 176; Bonner v. Lisenby, 86 Mo.App. 670. (b) The court erred in permitting defendant to go into the matter of the original account between plaintiffs and defendant's son, as no failure or illegality of consideration for check was pleaded by defendant. 6 R. C. L p. 819, sec. 215, and note 14; School District v Stocking, 40 S.W. 660, 138 Mo. 672; Shohoney v. Quincy Co., 132 S.W. 1059, 231 Mo. 131. (c) Agency may be established by circumstances and by course of prior conduct. Plummer v. Knight, 137 S.W. 1019, 156 Mo.App. 321; Cummings v. Hurd, 49 Mo.App. 145; Sharp v. Knox, 48 Mo.App. 169, 175 et seq.; Bonner v. Lisenby, 86 Mo.App. 670; Mosby v. Commission Co., 91 Mo.App. 504. (d) Agency may be established by subsequent ratification as well as by prior authorization. McLachlin v. Barker, 64 Mo.App. 526; Ferris v. Thaw, 72 Mo. 450; Middleton v. Railway, 62 Mo. 579; Short v. Stephens, 92 Mo.App. 154; Suddarth v. Empire Co., 79 Mo.App. 592 et seq. (e) Where plaintiff uses some of defendant's witnesses plaintiffs are not conclusively bound by their testimony, where not uncontradicted. Bennett v. Punton Sanitarium, 249 S.W. 669; Black v. Epstein, 120 S.W. 754, 221 Mo. 286. (f) Agency may be created by estoppel. Sharp v. Knox, 48 Mo.App. 169; Law Reporting Co. v. Elwood Grain Co., 115 S.W. 475, 135 Mo.App. 10; Matlock v. Paregoy, 173 S.W. 8, 188 Mo.App. 93; Haubelt v. Mill Co., 77 Mo.App. 679; Suddarth v. Empire Co., 79 Mo.App. 592, et seq.; Thornhill v. Masucci, 216 S.W. 819, 202 Mo.App. 357; Renick v. Brooke, 190 S.W. 641; Valiquette v. Clark, 77 A. 869, 83 Vt. 538, 34 L. R. (N. S.) 440; 21 R. C. L., par. 34, p. 856. (g) Agency may be established by estoppel even though not pleaded where received in evidence without objection. Suddarth v. Empire Co., 79 Mo.App. 592, et seq.; McDonnel v. DeSoto Assn., 75 S.W. 444, 175 Mo. 240; Cape Girardeau Co. v. St. Louis Co., 121 S.W. 306, 222 Mo. 486. (h) Where facts are received in evidence without objection which defendant claims should have been alleged in petition, appellate court will treat such petition as if amended to conform to the evidence. Ehrlich v. Mittelberg, 252 S.W. 671; Price v. Hallett, 38 S.W. 455; 138 Mo. 501; Cook v. Kerr, 192 S.W. 466; State ex rel. Clements v. Clardy, 185 S.W. 184, 267 Mo. 371; Sawyer v. Railway, 57 S.W. 108, 156 Mo. 468; State ex rel. Gromer, 252 S.W. 707; Williams v. Ellis, 239 S.W. 157. (i) Where defendant offers evidence and requests instructions, and tries case without objection that petition stated no cause of action, is estopped to deny the sufficiency of plaintiff's petition. Greer v. Railway, 158 S.W. 740, 173 Mo.App. 276; Hayes v. Bunch, 91 Mo.App. 471; Rigsby v. Oil Co., 91 S.W. 462, 115 Mo.App. 267; Marsh v. Davis, 251 S.W. 390. (j) Where defendant demurs to original petition, but answers to amended petition, petition will be sustained. Peterson v. Commonwealth Co., 249 S.W. 148. (k) There was sufficient evidence to go to the jury on theory of estoppel. Cummings v. Hurd, 49 Mo.App. 145; Morse v. Diebold, 2 Mo.App. 163; Moore v. Ziba Bennett Co., 227 S.W. 756; Mechem Agency, secs. 282-283; Valiquette v. Clark Co., 77 A. 869, 34 L. R. A. (N. S.) 440, 83 Vt. 538. (l) The section shows on its face that it applied to a signature by "procuration," which is not the case here. Secs. 806, 807, 808, R. S. 1919; Brannan Negotiable Instruments (3 Ed.), p. 78, sec. 21; Daniel and Douglas, Elements Law of Negotiable Instruments, p. 77, sec. 123. (m) The check sued upon having been executed and delivered in Illinois is not governed by the law of Missouri pleaded by respondent. Houck v. Sharp, 83 Mo.App. 385; 8 C. J. 95, par. 163. (n) No new consideration is required to hold a person ratifying a prior unauthorized act. Ferris v. Thaw, 72 Mo. 446, 450; First National Bank v. Gay, et al., 63 Mo. 39, et seq. (o) Where defendant offers a general demurrer to the evidence on the entire case without challenging sufficiency as to any particular count, and then offers an instruction on the theory of estoppel, he will not be permitted to claim in the appellate court that there was no evidence to go to the jury on such theory of estoppel. Ramsey v. Railway, 253 S.W. 1079, 1082; Torrence v. Pryor, 210 S.W. 430; Crum v. Crum, 132 S.W. 1070, 231 Mo. 639; Miller v. Prough, 221 S.W. 164, 203 Mo.App. 413; Schinogle v. Baughman, 228 S.W. 897, 899.
R. E. Bailey for respondent.
(a) A signature by procuration is notice that the agent has but limited authority to sign. Sec. 808, R. S. 1919. (b) An instrument made without authority not collectible. See Sec. 810, R. S. 1919. (c) When an instrument is signed or endorsed in the name of one person by another the plaintiff must prove the authority of the agent. Bank v. Hohm, 146 Mo.App. 669, 125 S.W. 539; Metlock v. Pamjoy, 188 Mo.App. 95, 173 S.W. 8. (d) Ratification must be pleaded. Lipscomb v. Talbott, 243 Mo. 1, 147 S.W. 798.
Plaintiffs, a copartnership, operating under the firm name of Jas. E. Bennett & Company, sued on a $ 1200 check drawn by defendant's son. The court directed a verdict for defendant, and plaintiffs appealed.
The petition is in two counts. The first on the theory that the son signed defendant's name as his agent, and the second on the theory that defendant is estopped to deny the son's agency. The answer put in issue the two theories. The facts are as follows: Defendant lived at Sikeston in Scott county. The son, nineteen years old at the time, went to Cairo, Ill. and tried his luck on the board of trade, plaintiffs handling his account. On May 5, 1921, the son deposited with plaintiffs $ 100, and on May 10th thereafter deposited another $ 100. These two deposits or payments were made by checks drawn by the son, payable to plaintiffs, and drawn on the Bank of Sikeston, and signed "Sam Potashnick, by R. B. Potashnick." The son testified that the first deposit or payment he made was cash, but plaintiffs' evidence tends to show it was by check the same as the second, and for the purposes of the statement, a directed verdict having been returned, we will assume that the two deposits were made by check as plaintiffs' evidence tends to show. These two checks in due course reached the Bank of Sikeston and were paid by defendant. On May 25, 1921, the check sued on was drawn by the son payable to Albert Lee, who at the time was employed by plaintiffs, and endorsed by Lee and delivered to plaintiffs. This check was signed the same as the other two--"Sam Potashnick, By R. B. Potashnick." When this check reached the Bank of Sikeston, payment was refused. It also appears that the son on May 14th drew a $ 75 check payable to a hotel in Cairo, and that it was signed the same as the others and that defendant paid the hotel check. Lee testified that defendant in Sikeston told him that he had had trouble before on account of his son signing his, defendant's, name to checks and that he did not then have the ready cash to pay this check, but that he would pay it.
The foregoing is the evidence presented by plaintiffs to show agency and estoppel. Defendant and the son both testified that the son had no authority to use defendant's name in any manner whatsoever in relation to drawing checks, and defendant explained that he paid the other checks because he owed his son.
The trial court directed a verdict in favor of defendant on the first count on the ground that no substantial evidence had been offered tending to establish agency, and on the second count on the ground that the petition on this count failed to state sufficient facts to constitute a cause of action.
The signature of a party to a negotiable instrument, such as the check sued on, may be made by a duly authorized agent. Section 806, Revised Statutes 1919. Defendant does not contend otherwise, but he says that there is no substantial evidence tending to show that his son was authorized to sign this check. In the case before us the alleged agent signed defendant's name for the benefit of the alleged agent. The only evidence offered tending to establish agency was the three checks, one of which plaintiff had no knowledge of. Plaintiff contends that these constituted some evidence tending to establish agency, and that the court should not have directed a verdict on the ground that there was no substantial evidence tending to establish agency. These three checks having been drawn as stated, and having been paid by defendant, plaintiffs contend, tends to prove the course of dealing on the part of the alleged agent which course of dealing defendant recognized and approved. Defendant challenged the competency of the hotel check on the ground that plaintiffs, when they received the check sued on, had no knowledge of the hotel check, and the trial court excluded this evidence. This check was competent for what it was worth in plaintiffs' chain of circumstances on the theory of implied agency whether they knew about it at the time or not. [Sharp v. Knox, 48 Mo.App. 169.] Such evidence is competent on the theory that it tends to show the course of dealing on the part of the alleged agent which has been sanctioned or ratified by the alleged principal. Do these...
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