Graham v. United States Sav. Inst.

• Decision Date: 31 March 1870
• Citation: 46 Mo. 186
• Parties: HENRY B. GRAHAM et al., Respondents, v. THE UNITED STATES SAVINGS INSTITUTION, Appellant
• Court: Missouri Supreme Court

46 Mo. 186

HENRY B. GRAHAM et al., Respondents,

v.THE UNITED STATES SAVINGS INSTITUTION, Appellant

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Slayback & Haeussler, for appellant.

The checks were not payment, and Dixon had not complied with his duty as collector until he had got the money. (Ward v. Smith, 8 Am. Law Reg. 69, 70; Sherer v. Green, 3 Cal. 419; Keney v. Hazeltine, 6 Humph. 62; Cooney v. Wade, 4 Humph. 444.) His authority carried and included, as an incident, all the powers which were necessary and proper, or usual, as means to effectuate the purpose for which it was created. (Sto. on Agency, §§ 97, 102; id., § 451; Haskins v. Johnson, 5 Sneed, 469; Woodford v. McClanahan, 4 Gilm., Ill., 90; Pres., etc., v. Cornen, 37 N. Y. 320; Lucas v. City, 7 Cal. 473; Combs v. Hann. Savings & Ins. Co., 43 Mo. 148.)

T. A. & H. M. Post, for respondents.

Dixon had no authority, by virtue of his position as clerk and collector, to indorse and collect checks payable to plaintiffs' order. (Terry v. Fargo, 10 Johns. 114; 1 Pars. on Bills and Notes, 106; Murray v. East India Co., 5 B. & A. 205.) The authority to collect is not authority to indorse. (1 Pars. on Bills and Notes, 106; Esdaile v. La Nause, 1 Young & Cole, 394; Hogg v. Smith, 1 Taunt. 347; Kilgour v. Finlayson, 1 H. Bl. 155; Hay v. Goldsmith, 2 Smith, 79; Byles on Bills, § 22 et seq.; Sto. on Agency, §§ 62-8, 98-9, 105.)CURRIER, Judge, delivered the opinion of the court.

This suit is brought to recover the amount of two checks which were drawn on the defendant by third parties in favor of the plaintiffs and made payable to their order. The drawers delivered the checks to the plaintiffs' collecting agent, one Dixon, in settlement of certain bills which the latter had in charge for collection, being bills due from the drawer of the checks to the plaintiffs. Dixon indorsed the defendant's firm name upon the checks and presented them at the bank and drew the money upon them, which he seems to have appropriated to his own use, without rendering any account thereof to the plaintiffs. Thus far there appears to be no serious controversy about the facts.

If Dixon had authority, general or special, to indorse the checks in the manner stated, or the defendant was authorized to pay them without the personal indorsement of the plaintiffs, it is not contended that the defendant would be liable in this action. The verdict of the jury, however, negatives the supposition of the existence of any such express authority. The defendant nevertheless undertakes to deduce the authority from the nature and character of Dixon's general agency in making collections and the transaction of business in behalf of the plaintiffs. Their chief complaint of the action of the court below is founded upon the refusal of the court to give the following instruction, namely: “If the jury believe from the evidence that Charles Dixon was, at the times stated in the petition, the clerk and collector of the plaintiffs, and that, as such, he received from the plaintiffs, among other accounts for collection, two accounts, one against Kramer & Loth, and one against Erfort & Petring, and that he was fully authorized and empowered to receive payment of and receipt said bills or accounts, and that, in pursuance of his duties and authority, he received in payment of such accounts the checks set out in the petition, and afterward collected the money on said checks from defendant, in accordance with his authority to collect said accounts, then they will find for the defendant.”

The logic of this instruction is...