Carson v. Cummings

• Decision Date: 30 April 1879
• Parties: CARSON et al., Plaintiffs in Error, v. CUMMINGS.
• Court: Missouri Supreme Court

69 Mo. 325

CARSON et al., Plaintiffs in Error,

v.CUMMINGS.

Supreme Court of Missouri.

April Term, 1879.

Error to Jackson Circuit Court.--HON. SAM'L L. SAWYER, Judge.

Ballingal & Gwynne for plaintiffs in error.

1. The instruction given by the court, of its own motion, is erroneous. It necessitates a finding of the fact that Cummings was at the time of his negotiations with plaintiffs the duly authorized agent of Mathews, Kingsbery & Co.; that they assented to the purchase by him at the time it was made, and that as the cattle were received by them they knew all the facts. Their liability may have been fixed by either of three facts--1st, that Cummings was their agent; or, 2nd, by a ratification ex post facto of his acts; or, 3rd, by tortious conversion of the property by defendants, and the assumption of dominion over the same. Ruggles v. Washington Co., 3 Mo. 497; Watson v. Bigelow, 47 Mo. 413; Henderson v. Railroad, 17 Texas 575.

2. If Cummings was not the authorized agent of Mathews, Kingsbery & Co., he perpetrated a fraud upon the plaintiffs. After Mathews, Kingsbery & Co. were informed of the facts by plaintiff Carson and defendant Cummings, they still retained the cattle and the proceeds of the sale of them, so that if Cummings was guilty of a fraud, Mathews, Kingsbery & Co. thereby made themselves particeps criminis and are liable to plaintiffs. Castle v. Bullard, 23 How. 189; Story's Eq. Jur., § 193 a.

3. If it be true that Cummings was not the agent of his co-defendants, then plaintiffs never parted by contract with the title to their property, and after defendants, Mathews, Kingsbery & Co. were made acquainted with the facts, their subsequent action was tortious conversion of the property, and while the property was in their possession plaintiffs could have maintained replevin, but not having resorted to that remedy, they certainly have the right to maintain their action in the nature of trover, and a previous demand was not necessary. Boyce v. Brockway, 31 N. Y. 490; 2 Greenleaf Ev., §§ 636, 637; Wilson v. Crocket, 43 Mo. 216; Battel v. Crawford, 59 Mo. 215; Koch v. Branch, 44 Mo. 542; Wag. Stat., § 34, 347; Raithel v. Dezetter, 43 Mo. 145; Reid v. Mullins, 43 Mo. 306.

Lathrop & Smith for respondents.

To make Mathews, Kingsbery & Co. liable for the unauthorized acts of Cummings, he must have bought the cattle for them and in their name, and they must have ratified his purchase by receiving the cattle and selling them as their own. In other words, Cummings must have acted as their agent, though without authority at the time, and not for himself, and they must have afterwards ratified his act, by adopting the purchase for them, and receiving and selling the cattle as their own property. Collins v. Swan, 7 Rob. (N. Y.) 623; Com. Bank v. Jones, 18 Texas 811; Fellows v. Commissioners, 36 Barb. 655; Doctor & Student, Robt. Clarke & Co.'s Ed. 234; Story on Agency, (4 Ed.) § 243, p. 307; § 251 a, p. 316. In all of the cases of ratification cited by plaintiff's counsel, without exception, the act ratified had been done in the name of the principal and for his benefit. And no case can be found where the unauthorized agent acted in his own name and behalf, and where the alleged principal, who sold the property for the agent, was held liable from mere knowledge that the sale had been made to such agent upon the faith of his false representations as to what the principal would do toward securing the purchase money. The authorities cited to show that trover may be maintained, even without demand, where the party could have brought replevin, have no bearing upon the case, because this suit was brought for the purchase price of the cattle sold, and the whole case was tried upon that theory.

HENRY, J.

Plaintiffs sued to recover $1,200, the price of sixty head of cattle alleged to have been purchased by W. J. Cummings, for his co defendants, A. B. Mathews, W. H. Kingsbery, J. E. Honsby and D. S. Alger. The petition alleged that Cummings was the agent of his co-defendants, who were co-partners doing business in Kansas City, and that in October, 1873, he was instructed by said firm to make a purchase of some cattle, and to promise their acceptance, or a joint note with Cummings, at ninety days, for the purchase money, and that Cummings purchased the cattle in question of plaintiffs, promising the acceptance of said firm, or a joint note of Cummings and the firm, payable ninety days after date, for the purchase money; that Cummings shipped the cattle to the firm, who sold them and appropriated the proceeds to their own use, and refuse to give their acceptance or note, or to pay the purchase price. The answer of his co-defendants denied that Cummings, at the time of the purchase, was their agent, or was ever authorized by them to purchase cattle for them on any terms, or that they ever promised their note or acceptance for the purchase money for any cattle whatever which Cummings might purchase.

1. HARMLESS ERROR IN RULING ON EVIDENCE.

The testimony of Cummings tended to sustain the averments in the petition. One of the plaintiffs, Carson, testified to the terms of the sale as alleged in the petition, and also to declarations made to him by Cummings as to his agency. That portion of his testimony in relation to declarations by Cummings, as to his agency, the court by instruction withdrew from the jury, and this is complained of as error. Until the agency is established otherwise, declarations of the person assuming to be agent are inadmissible to prove the agency. This doctrine is well settled, and was recently recognized by this court in Peck v. Ritchey, 66 Mo. 114. It was of no consequence, however, in this case, inasmuch as Cummings testified that he was the agent of his co-defendants. If the jury would not believe his testimony to that effect, certainly no harm could have resulted to the plaintiffs from the exclusion of his declarations.

2. VARIANCE: action excontractu: proof of trover and conversion, or fraud and deceit.

After the cattle came into the possession of the firm, and a portion of the lot was sold, the plaintiff, Carson, saw defendant Mathews in Kansas City, and told him on what terms the cattle was sold, but Mathews testified that he then informed Carson, in the presence of Cummings, that the latter had no such authority as he claimed. Carson did not demand the cattle that were unsold, or the proceeds of the sale of the others, but instituted this suit on the contract. The evidence of the bookkeeper of the firm was that the cattle were shipped by Cummings to the firm as his own cattle; that the proceeds of the sale were credited to him, and they were treated throughout as Cummings'...