Davis v. Krum

• Decision Date: 30 May 1882
• Citation: 12 Mo.App. 279
• Parties: F. G. DAVIS, Appellant, v. CHESTER H. KRUM, Respondent.
• Court: Missouri Court of Appeals

12 Mo.App. 279

F. G. DAVIS, Appellant,

v.CHESTER H. KRUM, Respondent.

St. Louis Court of Appeals, Missouri.

May 30, 1882.

1. A principal who, after notice, takes the proceeds of an unauthorized agreement made by his agent, thus ratifies the agent's act and adopts the contract.

2. An intermixture of goods which is neither wilful nor negligent will not entitle him whose goods have been, by the act of another, thus mingled, to take the whole.

3. A payment, whether in goods or in money, made by mistake of fact of both parties, may be recovered back by the payer, if shown to be in fact not due.

4. Where the payer parts with his right to claim, in kind, an excess of goods paid by mistake, upon the payee's promise to give him the proceeds thereof, this promise is a sufficient consideration, and also estops the payee to set up want of consideration.

5. An administrator who, under a mistake of fact, receives from a debtor of the estate more than is due, and applies the whole as assets of the estate, is individually responsible to the debtor for the excess.

6. The debtor, in such a case, has an action at law against the administrator, and is not compelled to proceed in equity against the estate.

7. If the agreed facts warrant a final judgment on appeal, the cause will not be remanded for the purpose of letting in a counter-claim which can be recovered upon in a separate action.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed, and judgment.SILAS B. JONES, for the appellant: A principal who knowingly receives the fruits of an unauthorized act of his agent, ratifies the act, and assumes the burdens which attach to it.-- Watson v. Bigelow, 47 Mo. 413; Norton v. Bull, 43 Mo. 113. Where one lose money which, ex aequo et bono, belongs to another, the law implies a promise to pay it upon which an action may be maintained; and the former will not be heard to deny the promise.-- Robbins v. Insurance Co., 12 Mo. 380; Mcgoffin v. Muldrow, 12 Mo. 512; Kanada v. North, 14 Mo. 615. One who has paid money through a mistake of fact is entitled to recover it back.-- Koontz v. Bank, 51 Mo. 275; Third National Bank v. Allen, 59 Mo. 310. The action was properly brought against the respondent individually.-- Cronan v. Cotting, 99 Mass. 334; Ashley v. Ashley, 7 Barn. & Cress. 444.

WALTER B. DOUGLASS, for the respondent: If one voluntarily mixes his goods with those of another, they become the property of the latter.-- Ward v. Ayre, Cro. Jac. 366; Beach v. Schmultz, 20 Ill. 185; Bryant v. Ware, 30 Me. 295; Hart v. Ten Eyck, 2 Johns. Ch. 108; Franklin v. Gumersell, 9 Mo. App. 84. The act of an agent beyond the scope of his authority does not bind his principal.-- Flanagan v. Alexander, 50 Mo. 50.

THOMPSON, J., delivered the opinion to the court.

On the 17th of January last, we delivered an opinion in this case reversing the judgment of the circuit court, and entering judgment in this court for the plaintiff. We stated in the opinion that the respondent had not furnished us with a brief, and that we were therefore left to conjecture as to the grounds on which the case had been decided in the circuit court. It seems that the respondent's counsel had filed a brief with the clerk, but copies of it had not been sent into the judges' rooms, nor was there any memorandum on the record to show that any such brief had been filed. When the respondent's counsel made known this fact to us, we set aside the judgment which we had rendered, reopened the cause, and gave the respondent leave to file a supplemental brief. We have now reconsidered the case, with the aid of the respondent's original and supplemental briefs; and our conclusion is, that we must enter the same judgment which we then directed. As the briefs of the respondent have directed our attention to some questions not considered in our former opinion, we shall cancel that opinion, and proceed to consider the case as though it had not been rendered.

This case was tried in the court below, on the following agreed statement of facts: “It is agreed by the parties herein that this cause may be tried by the court without a jury, on the following statement of facts which, for the purpose of the trial of this case in this court, are agreed to as follows, to wit:--

That the defendant Krum is, and was at the times hereinafter mentioned, the administrator of the estate of Daniel W. Bell, deceased; that on the 15th of April, 1878, and for some time prior thereto, F. G. Davis & Bro., of Henry County, Tennessee, were indebted to the estate of said Bell in the sum of $1,226.23; that said Krum, as administrator as aforesaid, authorized one John A. Cole, on behalf of the estate of said Bell, to accept, at Fulton, Kentucky, of said Davis & Bro., peas and wheat, at such prices as the said Cole and Davis & Bro. might agree upon, in full payment, satisfaction, and discharge of said indebtedness of $1,226.23, and to ship said peas and wheat to New Orleans, Louisiana, for sale on account of the estate of the said Bell; that the said Cole agreed with Davis & Bro. to accept peas at the rate of $1.25 per bushel, and wheat at the rate of $1.10 per bushel, in payment and satisfaction of said debt; that in pursuance of said agreement under the direction of said Cole, Davis & Bro. delivered to the agent of the railroad at Fulton, Kentucky, for account of D. W. Bell's estate, a quantity of peas and wheat, which the said Cole caused to be shipped to Newman & Jones, New Orleans, for sale for account estate of D. W. Bell; that said peas and wheat were not measured as they were from time to time delivered to the railroad at Fulton, by Davis & Bro.; that as soon as Davis & Bro. had completed the delivery of said peas and wheat to the railroad, but after they had all been shipped from Fulton, and a part had been sold by said Newman & Jones, the said Cole and Davis & Bro. met at Fulton, and computed the amount of peas and wheat delivered by Davis & Bro. to the railroad as aforesaid, and ascertained thereby that at the price aforesaid upon which said Cole had agreed to take said peas and wheat, Davis & Bro. had delivered to the railroad peas and wheat of the value of $1,542.20, being, according to the price aforesaid, $315.97 in value more than necessary to pay the said debt of $1,226.23; that neither Cole nor Davis & Bro. were aware, until all said peas and wheat had been shipped from Fulton, and until the computation above mentioned was made, that Davis & Bro. had delivered to the railroad more peas and wheat then necessary to pay the debt aforesaid, at the price aforesaid, nor was it the intention of Davis & Bro. to deliver, nor of Cole to receive, more peas and wheat than necessary to pay said debt at the price aforesaid; that at the time Davis & Bro. and Cole computed the amount of said produce as aforesaid, Cole executed and delivered to Davis & Bro. a paper, which is hereto attached, marked ‘Exhibit A,’ and made a part of this agreement; that the defendant Krum had not authorized Cole to execute said paper, nor to receive more produce than necessary to pay said debt at the price at which he should agree with Davis & Bro. to take it, nor was the said Krum aware, until more than thirty days after said paper was executed, and until a part of the produce had been sold and he had received the proceeds thereof, of the existence of said paper, or that more produce had been shipped to New Orleans than necessary to pay said debt at the price at which Cole had agreed to take it; that all the peas and wheat were sold in New Orleans by Newman & Jones for account of D. W. Bell's estate, and the net proceeds, amounting to $496.23, were received by defendant Krum in his capacity as administrator, and credited by him to said estate, after he had notice of the facts set forth; that about the 21st of May, 1878, the plaintiff, F. G. Davis, who had then become, and is now, solely interested in this matter by virtue of agreement with the other member of said firm of Davis & Bro., caused the paper hereto attached, marked ‘Exhibit A,’ to be presented to the defendant Krum, and demanded his alleged part of the proceeds of said produce; that, at the time last mentioned, only a part of said produce had been sold; that, on the 25th of June, 1878, all of said produce had been sold, and the defendant had received all the net proceeds as aforesaid; that at the time last aforesaid, said Davis again demanded of said Krum his alleged part of the said net proceeds; that defendant has always refused to pay said Davis any of said proceeds, and from the time of their receipt to this time, has refused to admit that said plaintiff, or Davis & Bro., have any interest whatever in said net proceeds.”

Exhibit A, referred to in the following statement, was as follows--

“Fulton, Kentucky, April 25, 1878. Statement of settlement with Messrs. F. G. Davis &. Bro. by John A. Cole, agent for the estate of Daniel W. Bell:--

1878.

CRS.

April 15.

By 1,019 bushels peas, at $1.25

$1,273 75

By 212 1/2 bushels wheat, at $1.10

233 75

Produce delivered, total Crs.

Cr. By order on E. B. Edding

Cr. By cash paid by F. G. Davis for hauling, to J. Frields, to Fulton, Ky.

$1,542 20

DR.

F. G. Davis & Bro., Dr., to estate D. W. Bell.

To third note, dated September 15, 1877, due ninety days after date.

$452 00

To interest on same for forty-five days, at ten per cent

5 90

To fourth note, dated September 15, 1877, due one hundred and twenty days after date

4 50

To interest on same for fifteen days, at ten per cent

1 95

To account on books due December 31, 1877

314 81

To interest on same for thirty-one days, at six per cent

1 57

Total indebtedness to estate D. W. Bell

$1,226 23

This certifies that Messrs. F. G. Davis & Bro. have an interest in the above produce, and entitled thereto when sold; they sharing their pro rata of all expenses in same.

JOHN A. COLE, Agent for estate D. W. Bell.”

The appellant asked declarations of law to the effect that, on the agreed facts, he was entitled to recover; and that,...