City of Springfield, for Use and Benefit of Horton v. Koch
| Decision Date | 02 April 1934 |
| Citation | 72 S.W.2d 191,228 Mo.App. 511 |
| Parties | CITY OF SPRINGFIELD FOR THE USE AND BENEFIT OF HARRY G. HORTON, RESPONDENT, v. EDGAR V. KOCH AND VICTOR E. KOCH, APPELLANT |
| Court | Missouri Court of Appeals |
Rehearing denied June 6, 1934.
Appeal from Greene County Circuit Court, Division One.--Hon. John Schmook, Judge.
Judgment affirmed.
R. A Pearson for appellant.
The Statute of Frauds will not permit the principal to act as agent for the surety to sign his name to the obligation to answer for the principal's default. The authority to show such agency by parol would be as objectionable as to show a direct promise by parol. Mondragon v. Mondragon, 239 S.W. l. c. 653; Dorian v. Ry. Co., 245 N.Y.S. l. c 32; Bowdoin v. Headly (Ala.), 98 So. 32; Wilson v. Mill Co., 55 Amer. St. Rep. l. c. 687; Tull v. David, 45 Mo. 444; Dunham v. Hartman, 153 Mo. 631, l. c.; 27 C. J. 293, sec. 365. The denial of the execution of the instrument sued on puts plaintiff upon his proof, and the defense of the Statute of Frauds is raised thereby. Hunt v. Ford, 142 Mo. l. c. 301; Devore v. Devore, 138 Mo.App. 181; Boyd v. Paul, 125 Mo. 9. Performance by the promisee does not take the promise out of the statute. 27 C. J. 356, sec. 435; James v. Gillet (Iowa), 118 N.W. 317; Huntoon v. Powell (Cal.), 263 P. 1030; Swarens v. Pfnisel, 26 S.W.2d 951. Statutory public bonds are in lieu of private mechanic's lien rights and likewise the beneficiary must show the materials and values were used in the improvements. DeBolt v. Bank (Okla.), 151 P. 686; Kansas City ex rel. v. Davidson, 154 Mo.App. 269; Shulenberg v. Prairie Home, 65 Mo. 295; Current River v. Cravens, 54 Mo.App. l. c. 220; Graef v. Transit Co., 224 Mo. l. c. 274. An agency by estoppel cannot make a void and illegal act binding any more than an admitted agency. Estoppel cannot be invoked to defend or uphold a crime or fraud or misdoing of any kind. 21 C. J. 1200; Am. Equitable v. Powderly (Ala.), 140 So. 37; Henderson v. Bank, 202 N.W. l. c. 264; Nash v. Moore, 151 N.Y.S. 96; Flournoy v. Hotel Co., 153 S.W. 26; Horner v. City (Tex.), 45 S.W.2d 633.
V. O. Coltrane for respondent.
Edgar V. Koch had for years been signing his brother's name to these bonds with the knowledge and consent of the brother, and the brother took no steps to prevent it and gave no notice that it was unauthorized. Edgar's authority to bind his brother will be presumed. Rice v. Groffman, 56 Mo. 434; Mecham on Agency (1 Ed.), sec. 86; Weaver v. Ogletree, 39 Ga. 586. An agent is a competent witness to establish his own agency, or it may be implied from the conduct and acquiescence of the principal, or from the course of business between them. Johnson v. Hurley, 115 Mo. 513; Haubelt Bros. v. Mill Co., 77 Mo.App. 672. The Statute of Frauds has no application where there has been a full and complete performance of the contract by one of the contracting parties. Bless v. Jenkins, 129 Mo. 647; McGinnis v. McGinnis, 274 Mo. 285, 202 S.W. 1087; Self v. Cordell, 45 Mo. 345; Suggett v. Cason, 26 Mo. 221; Johnson v. Hurley, 115 Mo. 513; 27 C. J. 350. Delivery of material at the place of use establishes, prima facie, the fact of their use and places the burden of showing the contrary upon the defendants. 71 A. L. R. 110, and note collecting cases; Lumber Company v. Harris, 107 Mo.App. 148; Crane v. Smith, 187 Mo.App. 259. Recovery for materials furnished on public works is not limited to what could be recovered under the mechanics' lien law. Hilton v. Universal Const. Co., 216 S.W. 1034. A general or continuing agency having been shown, he who relies on the principal's revocation must show notice given thereof; and, as against persons theretofore accustomed to deal with the agent as such, notice must be brought home to them. Lamothe v. St. Louis Mar., etc., R. Co., 17 Mo. 204; Waters Pierce Oil Co. v. Jackson Junior Zinc Co., 98 Mo.App. 324; 2 C. J. 539, sec. 165; Chaflin v. Lenheim, 66 N.Y. 301, 305.
The petition in this case is in seven counts, each of which is based upon a contractor's bond for the faithful performance of the several contracts of defendant, Edgar V. Koch, contractor with the city of Springfield, for the construction of certain street improvement, therein stated.
The appellant, V. E. Koch, purports to be the surety on the bonds of Edgar Koch, his codefendant, which bonds are the subject-matter of this action.
The relator, Harry G. Horton, is the materialman to the use of whom the suit is brought upon his claim, for crushed stone, furnished to and used by Edgar, in the construction of said improvements.
The aggregate of the claims of respondent, for which judgment was had, is $ 1660.59.
The only issue involved in the consideration of this case is the question of the liability, if any, of appellant, Victor E. Koch, whose name appears as surety in the seven bonds in suit. Touching that issue the facts in evidence are as follows:
Edgar V. Koch, the contractor and principal in each of the bonds and Victor E. Koch, whose name appears on each of them as surety, are brothers.
Victor, who had from 1907 been doing general contracting, street paving, sewer and sidewalk construction, commencing in 1911 and continuing to the summer of 1929 took contracts for such work in the city of Springfield. His brother, Edgar, for a part of that time lived in Springfield, and during much of the time from 1911 to 1929 represented his brother, Victor, in connection with his bids and contracts for street improvement, in the city of Springfield, often taking contracts for such in his own name, as principal, with Victor as surety on the bond therefor. The evidence shows and Victor admits, that Edgar had not only submitted the bids, took and signed such contracts and bonds as contractor, but also, with his consent, signed Victor's name to the bonds, as surety, thereafter assigning the tax bills to Victor and that he, Victor, in such cases paid all claims for labor and material. Some forty-seven or forty-eight of such contracts and bonds, over a space of five or six years, next before the execution of the contracts and bonds in this case, and so signed, were in evidence and admitted by Victor to have been his in reality.
The contracts taken and bonds executed in the seven transactions mentioned in respondent's petition in this cause, were taken and executed in the same form and ostensibly by the same persons as the previous forty-seven or forty-eight transactions in evidence. The execution of the bonds sued on in this case occurred from about July 8, 1929, to December 18, 1930. Some time previous to execution of the bonds in suit, the appellant had some sharp words with Mr. Culler, who was then city engineer, after which all the contracts of the appellant with the city of Springfield, were taken in the name of his brother, Edgar, with appellant signing as bondsman. This being done for the reason that the city council refused to award him (appellant) any further contracts. However, the evidence discloses that in such cases the name of appellant on the bonds was generally signed by his brother, Edgar, but the tax bills were by him assigned to appellant, who received the money and paid the bills incurred in the completion of the contracts.
The evidence discloses that about the month of July, 1929, and continuing to December, 1930, the defendant, Edgar, with appellant again appearing as surety, took the seven contracts secured by the seven bonds in issue. That no notice or information of appellant's objection, was given to or received by the council or the respondent, until after the execution of the bonds in suit and the completion of the work done by Edgar, in compliance therewith.
Appellant testified that about the middle of 1930 he told Mr. Horton, the respondent, that Edgar was for himself but did not tell him that he was not authorized to sign his (Victor's) name as surety, on any bonds, nor did appellant testify that he ever told any officer of the city at any time that Edgar was not authorized to sign his (appellant's) name to any of the other bonds in evidence. Edgar, however, testified that he signed appellant's name as surety on the bonds in suit, as he had been accustomed to do, and that appellant did not attempt to revoke his authority to sign his name as surety until January, 1931, after all the materials for the jobs mentioned in plaintiff's petition had been purchased and used. That appellant always paid the claims for labor and materials on all other jobs contracted for, and which were secured by bonds signed exactly the same as in this suit, that is the name of Victor as surety, being signed by Edgar, who was ostensibly the contractor, when in truth Victor was the principal in the job and Edgar was his employee, on a salary, neither the city nor the materialmen having any knowledge of the true facts in the previous jobs or the jobs in suit.
The circuit court, upon the facts as stated, found the issues in favor of the respondent, upon each of the counts in his petition, from which Victor E. Koch, the bondsman appealed.
There were no separate assignments of error.
The evidence shows conclusively, that Edgar V. Koch had for a number of years, with the knowledge and consent of his brother, Victor, been signing his (Victor's) name as surety to like bonds to the city of Springfield. Appellant took no steps to prevent it nor gave any notice that it was unauthorized, therefore, Edgar's authority to bind appellant will be presumed. [Rice v. Groffmann, 56 Mo. 434; Weaver v. Ogletree, 39 Ga. 586; Meechem on Agency (2 Ed.), secs. 262, 263.]
"It is the general rule that the acts of a former general agent within the scope of his original authority...
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