Brooks v. Jameson

• Citation: 55 Mo. 505
• Parties: WILLIAM BROOKS, et al., Appellants, v. HIRAM R. JAMESON, et al., Respondents.
• Decision Date: 28 February 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 505

WILLIAM BROOKS, et al., Appellants,

v.HIRAM R. JAMESON, et al., Respondents.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Gentry Circuit Court.

Strong & Hedenburg, and Bennett Pike, for Appellants.

I. The taking of the notes in the names of the principals and in their business, without the continued possession of the same, or at least having the same in possession up to, and at the time of, payment, did not authorize said agents to collect the money due thereon by virtue of their agency. (Sto. Ag., 114, § 98; Doubleday vs. Krew, 60 Barb., 181.)

II. The said agents had the first two notes in their possession at the time of their collection of them. This, in connection with the fact of their having taken the same for their principals, raises a presumption of incidental authority in such agents to receive the money due on them. (Sto. Ag., 120, § 104.)

III. These agents were only special agents, and their declarations as to their authority did not determine the extent of such authority.Chandler & Sherman, for Respondents.

I. The representations, declarations and conversations of plaintiffs' agents at the time of the sale of plaintiffs' machine to defendants, and respecting the transaction, constitute part of the res gestæ. (Sandford vs. Handy, 23 Wend., 260.)

II. The real question is not what power was intended to be given to the agents, but what power a third person, who dealt with the agents, had a right to infer from the acts of the agents and those of the principals. (Johnson vs. Jones, 4 Barb., 373; Perkins vs. Wash. Ins. Co., 4 Comst., 645; Comm'l Bank of Lake Erie vs. Morton, 1 Hill, 501; Tradesmen's Bank vs. Astor, 11 Wend., 87.)

III. It is not necessary in order to constitute a general agent, that he should have done an act the same in specie with that in question. If he has done things of the same general character and effect with the assent of his principal, that is enough. (Comm'l Bank of Lake Erie vs. Morton, supra; Perkins vs. Wash. Ins. Co. supra.)

IV. Persons dealing with agents, clothed with apparent authority by their principals, have the right to rely upon the acts and declarations of such agents respecting matters within the scope of their apparent authority, though they be limited in their agency, unless such persons knew of such limitations. (Howe Machine Co. vs. Snow, 32 Iowa, 433; Sumner vs. Saunders, 51 Mo., 89; Sto. Ag., §§ 137, 127, n. 2; Pickering vs Buck, 15 East., 38; De Baun vs. Atchison, 14 Mo., 543.)

V. Ratification arises often by implication, and it is not necessary that there should be any positive or direct confirmation. Slight circumstances and small matters will sometimes suffice to raise a presumption of ratification. (Sto. Ag., §§ 252, 253, et seq.)

VORIES, Judge, delivered the opinion of the court.

This action was brought on an instrument described in the petition as a promissory note, which is in the following words:

“CAMERON, Mo., Aug. 9th, 1869.

On or before the first day of October, 1870, we promise to pay Upton Brown & Co. or order, two hundred dollars for value received in thresher, with interest at 7 per cent. payable at Cameron, Mo. The express condition of the sale and purchase of said thresher is such, that the title, ownership or possession does not pass from said Upton & Brown, until this note and interest is paid in full: that said Upton Brown & Co. have full power to declare this note due and take possession of said thresher at any time they may deem themselves insecure, even before the maturity of said note.

For the purpose of obtaining credit, we certify that we own in our own name 300 acres of land, with 180 acres improved, worth over incumbrances, $____; worth of personal property over and above all indebtedness $_____.”

The petition set out this note, and was otherwise in the usual form. The answer set up the allegation that the note had been fully paid when it became due, and prayed judgment for costs. The replication simply denied the payments.

At the trial it was admitted by the defendants, that plaintiffs composed the partnership firm of Upton Brown & Co., and the plaintiffs read the note in evidence and closed. The defendants were each examined as witnesses. Their evidence tended to prove, that, at the time of the execution of the note sued on, the defendants purchased at Cameron, Missouri, of the firm of Auter Bro's & Shutt, a thresher, for which they agreed to pay eight hundred dollars, two hundred dollars of which was paid down at the time of the purchase; and that they executed three promissory notes for two hundred dollars each, payable to plaintiffs, and delivered to said firm of Auter Bro's & Shutt, as plaintiffs' agents, for the balance of the purchase money; one of said notes being made payable in October, 1869; one on the 1st of January, 1870; and the third on the 1st of October, 1870; the third one being the same on which this suit is brought; that the said Auter Bro's & Shutt represented themselves to be the agents of plaintiffs in the sale of the machine and taking the notes, and told the defendants, that when their notes fell due to come to them in Cameron, Mo., and pay off the notes; that the defendants paid off the first note about the time the same became due to Auter Bro's & Shutt, at Cameron, Mo., who then had said note in their possession, and when the note was paid, they delivered it up to defendants; that a short time before the second note became due, defendants paid a portion of it to Auter Bro's & Shutt, at Cameron, who said they would credit the amount so paid on said note; that said note was not exhibited at the time of said payment; that, afterwards, about the time the second note became due, they paid the balance due thereon in full to Auter Bro's & Shutt, at Cameron, who then had the note, and delivered it to defendants at the time of payment; that defendants, at the time of taking up the second note, paid to said Auter & Co. $27 00, or $35, to be credited on the note sued on, but that they did not see the note at the time, but took a receipt for such payment, signed by Auter Bro's & Shutt.

To all of the above evidence given by the defendants, the plaintiffs at the time objected, on the ground that said evidence was incompetent and not relevant to the cause. The court overruled the objection, and the plaintiffs excepted. The defendants introduced further evidence, tending to prove that, a short time after the second note executed for the machine had become due and had been paid, they received a letter from the plaintiffs, directing them to pay the same to Auter Bro's & Shutt, at Cameron, Mo., which was the only letter ever received by them from plaintiffs; that, about the time the note sued on became due, they went to Cameron to pay the balance due thereon, and paid the same to Auter Bro's & Shutt; that they did not present the note; that it was late in the evening when they called to pay it, and, when it was paid, they called for the note; one of the firm hunted for the note, another member of the firm expressed his doubts as to whether the note was there, and after the note had been hunted for unsuccessfully, they gave him a receipt for the money in full discharge of the note, Auter Bro's & Shutt, agreeing to send them the note when procured or found.

The depositions of plaintiffs, James Upton and Perry Upton, were then read in evidence, which tended to prove that the plaintiffs were partners in manufacturing threshing machines in the State of Michigan; that their business was exclusively carried on in Michigan, so far as the manufacture of machines was concerned; that they all reside in Michigan; that Auter Bro's & Shutt, a firm at Cameron, Mo., were their agents at Cameron for the sale of their machines, and as such agents possessed no authority except to sell the machines; that on the 29th of March, 1870, the plaintiffs received the note sued on from said firm at Cameron on the sale of one threshing machine; that on the 16th day of September, 1870, the note was forwarded by plaintiffs to the Cameron Deposit Bank for collection; that the note had remained in their possession from the time it was received up to the time they sent it to the bank; that said Auter Bro's & Shutt were never requested by plaintiffs to collect said note, nor did they ever have any authority to collect or receive any money thereon; that plaintiffs were always the owners and holders of the note; that plaintiffs did hold another note against defendants, which was due long before the note sued on, which at the request of the defendants was sent to Auter Bro's & Shutt for collection, but that no other note was ever sent to them for collection; that plaintiffs have never received any part of the money due upon said note; that no local agent of the plaintiffs is ever authorized to collect or receive the money upon any note or other obligation of plaintiffs, unless specially requested to do so in the particular case; that they are only authorized to receive the cash payment paid down at the sale of a machine. The defendants in rebuttal each testified, that neither of them ever requested plaintiffs to send the note or any note to Auter Bro's & Shutt for collection, nor had they ever any communication with plaintiffs of any nature whatever.

The court at the close of the evidence was requested by the plaintiffs to instruct the jury, as follows: 1st. “The pleadings in this case admit, that the defendants executed the note sued on in this case, and, if the jury believe from the evidence that they are the persons who composed the firm of Upton, Brown & Co. at the time said note was given, the jury will find for the plaintiffs,...