First Nat'l Bank of Trenton v. Gay
| Decision Date | 31 May 1876 |
| Citation | 63 Mo. 33 |
| Parties | FIRST NATIONAL BANK OF TRENTON, Mo., Respondent, v. SAMUEL GAY, ROBERT L. GILLILAN AND NATHAN GILLILAN, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Daviess County Court.
Shanklin, Low & McDougal, for Appellants.
I. The instrument sued on is not a promissory note, and was inadmissible under the pleadings. The stipulation for the payment of an attorney's fee reduced it to an ordinary contract. .)
II. The evidence of James B. Carnes was insufficient to establish a ratification of the note, for it is not shown that Nathan promised to pay this note, nor that his remarks were made with full knowledge of all the facts.
Daniel Metcalf, for Respondent.
I. The fact that Robert Gillilan executed the note with Samuel Gay, does not make the note less binding on Nathan Gillilan. When an agent does what he has authority to do, and also that which is in excess of his authority, his acts are good to the extent of his authority.
II. The fact that Robert L. Gillilan, as the agent of Nathan Gillilan, signed the name of Nathan Gillilan without signing his own name as agent, makes no difference if he was Nathan's agent. It is a matter of proof aliunde. (1 Pars. Bills and Notes, § 4, p. 91; Trumbull vs. Brent, 1 Hill, 336.)
III. The allegations in the petition that the note was for value received, sold and endorsed to the respondent, is sufficient. (Whittelsey's Mo. Pr., 147, 148; Dumont vs. Williams, 18 Ohio St., 515.)
Action on instrument in this form:
| “$650.00 |
TRENTON, Mo., May 13, 1874.
Ninety days after date we promise to pay to the order of Robert L. Gillilan, six hundred and fifty dollars, for value received, with interest after maturity, at the rate of ten per cent. per annum, at the First National Bank of Trenton, Mo.; and if not paid at maturity, and the same is placed in the hands of an attorney for collection, we agree and promise to pay an additional sum of ten per cent. as attorney's fee.
SAMUEL GAY.”
On the above instrument there was this indorsement: “For value received, I assign the within note to First National Bank of Trenton, Mo., and waive protest, notice of protest, and demand of payment.
ROBERT L. GILLILAN.”
The petition alleged, among other things, that in consequence of the non-payment of the instrument at maturity, it was placcd in the hands of an attorney for collection, and asked judgment not only for the principal sum with interest, but also asked for four per cent. damages for non-payment, as well as ten per cent. damages as an attorney's fee.
In addition to other matters, the defendant, Nathan Gillilan, put in a plea of non est factum. A trial was had, resulting in a verdict for plaintiff and judgment accordingly.
These instructions, against the objection of the defendant, were given on behalf of the plaintiff:
1. “If the jury believe from the evidence that the defendan, Nathan Gillilan, authorized or directed Robert Gillilan to get money from plaintiff, and to sign or use his name on a note, or notes, therefor, and that said Robert did, in pursuance of such authority, borrow of plaintiff $624.80, and to secure the payment of the same, did make the instrument sued on, signing said Nathan's name thereto as a maker of said instrument, they must find for plaintiff against all of the defendants for that sum.”
2. “If the jury believe from the evidence that defendant, Nathan Gillilan, authorized or directed Robert L. Gillilan to get money from plaintiff, and to sign or use his name therefor, and that said Robert did, in pursuance of such authority, borrow of plaintiff $624.80, and to secure the payment of the same, did make the instrument sued on, signing said Nathan's name thereto as a maker of said instrument, and that said instrument was within the scope and meaning of his authority to use said Nathan's name, then they must find for plaintiff against all the defendants for said sum and ten per cent. thereon, as attorneys' fees.”
For the reason that the instrument in suit is not precise as to the amount to be paid, we do not regard it as a promissory note. And no little stringency is exhibited by the cases in respect to this point. It is said that, “the sum must be stated definitely, and must not be connected with any indefinite or uncertain sum,” and that the rule id certum est, etc. is not allowed to supply any lack in this particular. Thus, where the promise was to pay a certain sum and “all fines according to rule,” it was held, that the words just quoted could not be rejected as surplusage, and that, consequently, the paper declared on was not a promissory note. (Ayrey vs. Fearnsides, 4 M. & W., 168.) Numerous other instances of like tenor and effect can be found in the books.
Here, a portion of the amount promised to be paid, to-wit, the attorneys' fees, depends upon the contingency, whether another portion, specified by the same paper, is paid on maturity. There are, however, authorities which hold to a different view from the one here enunciated (Stoneman vs. Pyle, 35 Ind., 103; Nickerson vs. Sheldon, 33 Ill., 373; Sperry vs. How, 32 Iowa, 184), but we regard them as seriously endangering elementary principles and definitions. If, then, our position be correct, that the instrument referred to is not a promissory note, the first instruction given at plaintiff's instance is clearly faulty, in assuming that if Robert Gillilan was authorized by Nathan Gillilan to sign his name to a note or notes, in order to borrow money, therefore this authority would comprehend and authorize the execution of such an instrument as the one declared on. If the father, when stating “that whenever his son wanted accommodation at the bank, he was authorized to use or sign his name,” did not by such language intend to confer authority for signing his name to a note or notes as security, it is impossible to give any meaning or force to his utterances. He must have meant to confer such authority if he meant anything. And it will not be assumed that this language of the father was a mere idle declaration. The law, therefore, will give effect to such evident intention, in the usual and ordinary manner in which such intention is commonly effectuated. The authorities abound in favor of this view. (Sto. Agency, §§ 57, 58, 59, 60, 84, 85, 102, 103; Ekins vs. Macklish, Ambler, 184.)
But while we may freely concede that all means necessary and proper for the accomplishment of the end were intended, yet this concession cannot be permitted to embrace the extraordinary means and measures resorted to by the son, in the present instance. These considerations conspicuously show the exceeding impropriety of giving the instruction above mentioned. The second instruction was equally erroneous as the first. The evidence of plaintiff's own witnesses, the officers of the bank, shows that the father, in proffering the use of his name, for the accommodation of the son, distinctly stated “that he and Robert were both good; that he did not wish to go out of the family for security, that there was no necessity for doing so.” This language is susceptible of but one construction. It plainly indicates that while the father was willing to become the surety of his son, he at the same time desired to restrict that suretyship to the members of his family. And he had the undoubted right to so restrict his liability. And, as a necessary sequence therefrom, the son had no power to disregard these restrictions which were imposed on him.
These remarks are but the application of a very familiar doctrine respecting agents who possess only special and limited powers. Thus, an agent authorized to draw and indorse bills in the name of his principal, has no power to draw or indorse a bill in his own name, or in the joint name of himself and principal. (Slainback vs. Read, 11 Gratt. 281.) A ruling similar to this in point of principle, was made in Mechanics' Bank vs. Schaumburg (38 Mo., 228). And it matters not whether the addition of the name of Samuel Gay to the note, prior to its delivery, affected the rights or interests of Nathan Gillilan injuriously or otherwise. He has the right to say, when ascertaining that his instructions have not been followed: “I never gave assent to this contract.”
The instruction referred to was erroneous, therefore, as already stated, because there was not a particle of evidence tending to show that Nathan Gillilan was willing, at the outset, to assume with Samuel Gay, or indeed any one else, outside of his family, a joint liability in the execution of any paper whatever, much less the instrument in suit. There are other errors in this instruction but we need not point them out, as they...
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