Hamlin v. Abell

• Decision Date: 13 February 1894
• Parties: Hamlin et al. v. Abell, Appellant
• Court: Missouri Supreme Court

25 S.W. 516

120 Mo. 188

Hamlin et al. v. Abell, Appellant

Supreme Court of Missouri, Second Division

February 13, 1894

Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

Scammon Crosby & Stubenrauch for appellant.

(1) The testimony was uncontradicted that the appellant sold these notes as the agent of the First National Bank of Fairmont Nebraska, and that the respondents knew this at the time they purchased the notes. The jury, therefore, should have been instructed to find for appellant. Ziegler v. Fallon, 28 Mo.App. 295; Hartzell v. Crumb, 90 Mo. 630; Klosterman v. Tobler, 58 Mo. 290; Mechem on Agency secs. 555, 929; 1 Am. and Eng. Encyclopedia of Law, p. 401; Worthington v. Cowles, 112 Mass. 30; Fleet v. Martin, 7 L. R. Q. B. 126; Fairlee v. Fenton, L. R. 5 Ex. 169. (2) The court erred in giving instruction number 1 of its own motion. It ignored entirely the gist of the action, viz., fraudulent intent, or such reckless conduct as was equivalent to a disregard of the rights of others. Dulaney v. Rogers, 64 Mo. 201; Dunn v. White, 63 Mo. 181; Welsh v. Morse, 80 Mo. 568; Redpath v. Lawrence, 42 Mo.App. 101; Anderson v. Pike, 86 Mo. 293; Fenwick v. Bowling, 42 Mo.App. 516; Kountz v. Kaufman, 31 Mo.App. 397; 1 Smith's Leading Cases [6 Am. Ed.], part 1, 284. (3) The court erred in refusing to receive testimony from appellant that several notes of the parties on account of which the suit was brought, before negotiated by the appellant, had been paid promptly at maturity. (4) The testimony of E. L. Martin to the effect that he had paid his note by a conveyance of land, should have been admitted by the court. (5) The court erred in refusing to permit the appellant to show that the bank statement published in its circular was exactly what it purported to be, the thing called statement published by the bank in the newspapers, as immaterial and irrelevant. (6) The court erred in refusing to permit the appellant to show the efforts that he had made, through his agent Bostwick, to ascertain the real standing of the First National Bank of Fairmont, and in refusing to permit the letter of that bank's correspondent at Omaha to be introduced in evidence. Abbott's Trial Evidence, pp. 617-621. Oberlander v. Spiess, 45 N.Y. 175.

Harwood & Meredith and Charles Offutt for respondents.

(1) The rule that an agent may escape personal liability when he acts as agent, applies only: First, when the agent fully and unmistakably discloses the name of his principal; and, second, in actions brought upon contract. McClellan v. Parker, 27 Mo. 162; Thompson v. McCullough, 31 Mo. 224; Schell v. Stephens, 50 Mo. 379; Adams v. Lindsell, 1 B. & Ald. 681; Levy v. Cohen, 4 Ga. 1; Ferrier v. Storer, 63 Iowa 484; Abbott v. Shepard, 48 N.H. 14; Stockham v. Stockham, 32 Md. 196; Story on Agency [9 Ed.], secs. 266, 267; Mechem on Agency, secs. 554, 929; Cobb v. Knapp, 71 N.Y. 352; Baldwin v. Leonard, 39 Vt. 260; Bank v. Gallaudet, 120 N.Y. 298; Welch v. Goodwin, 123 Mass. 71; Raymond v. Mills, 2 Met. (Mass.) 319; Mills v. Hunt, 20 Wend. (N. Y.) 434; Daniel on Neg. Inst. [3 Ed. 1885], sec. 740a. (2) The elements of deceit once established, appellant can not escape liability on the ground that he acted as agent. If the charge be true, he committed a tort, and is personally responsible therefor, even though he had expressly stated that he acted as agent and fully disclosed the name of his principal. Swaggard v. Hancock, 25 Mo.App. 596; Reed v. Peterson, 91 Ill. 297; Lee v. Matthews, 10 Ala. 682. (3) The representations relied upon in this case were statements of fact by Abell as of his own knowledge; if it is shown that these statements were false, Abell can not excuse himself by proving that he acted upon information given him by others, which he believed to be true. Buford v. Caldwell, 3 Mo. 477; Caldwell v. Henry, 76 Mo. 254; Welsh v. Morse, 80 Mo. 568; Dunn v. White, 63 Mo. 181; Dulaney v. Rogers, 64 Mo. 201; Kountz v. Kaufman, 31 Mo.App. 397; Glasscock v. Miner, 11 Mo. 655; Cotrill v. Krum, 100 Mo. 397; Fisher v. Mellen, 103 Mass. 503; Litchfield v. Hutchinson, 117 Mass. 195; Kirkpatrick v. Reeves, 121 Ind. 280. (4) The instructions requested for appellant were all either, first, in conflict with the principles of law as above stated, or second, did not recognize their application to the case at bar. Caldwell v. Henry, 76 Mo. 254; Kountz v. Kaufman, 31 Mo. App., 397; Bank v. Gallaudet, 120 N.Y. 298; Nicol's Case, 3 DeG. & J., 439; Railroad v. Horst, 93 U.S. 295; Moncrief on Fraud, pp. 185, 186; 2 Thompson on Trials, sec. 2349, 2352. (5) There was no error in the rejection of evidence offered by the appellant, because said evidence was either, first, incompetent, immaterial and irrelevant, or, second, was not sufficient to have changed the result of the trial. (6) If objectionable evidence was admitted, or proper evidence rejected, the error was without prejudice because not of sufficient importance to affect the result of the trial.

OPINION

Gantt, P. J.

This is an action for damages growing out of alleged deceit and misrepresentations in the sale of three pieces of commercial paper. Plaintiffs were, during the transactions complained of, and now are, copartners in the general banking business, buying and selling notes and bills of exchange in the city of East Bloomfield, in the state of New York. They allege that prior to the twenty-eighth day of April, 1888, the defendant, Abell, who resides in Kansas City, Missouri, was the owner of, and held for sale, three promissory notes in words and figures following:

"$ 1,000. Fairmont, Neb., April 2, 1888.

"October 2nd, '88, after date, for value received, I or we, promise to pay J. O. Chase, President, or order, $ 1,000, at the National Bank of Commerce, Kansas City, with interest at 10 per cent. per annum after maturity.

"[Signed] J. W. Walters.

"[Indorsed] Pay M. B. Abell, or order, First National Bank of Fairmont, Neb.

"J. O. Chase, President."

"$ 806.90. Fairmont, Neb., April 12, 1888.

"October 12th, after date, for value received, I or we, promise to pay J. O. Chase, President, $ 806.90-100, at the National Bank of Commerce, Kansas City, with interest at 10 per cent. per annum after maturity.

"[Signed] Chase & Walters.

"[Indorsed] Pay M. B. Abell, or order, First National Bank of Fairmont, Neb.

"J. O. Chase, President."

"$ 800. Fairmont, Neb., April 7, 1888.

"Four months after date, for value received, I or we, promise to pay J. O. Chase, president, or order, $ 800, at the National Bank of Commerce, Kansas City, with interest at 10 per cent. per annum after maturity.

"[Signed] E. L. Martin.

"[Indorsed] Pay M. B. Abell, or order, First National Bank of Fairmont, Neb.

"J. O. Chase, President."

"That in order to induce these plaintiffs to buy the aforesaid three promissory notes the defendants falsely and fraudulently represented to the plaintiffs in writing that the said names thereon, that is to say, the makers and indorsers thereof 'were responsible and always and reliably prompt,' and that the said E. L. Martin was a 'large dealer in coal, and stock feeder and shipper, and doing a successful business. The note is well secured by collateral.' J. W. Walters was 'a large and prosperous cattle grower and feeder and pays his obligations promptly. This note is well secured by collateral.' And that the said Chase & Walters was a firm 'in good financial circumstances and engaged in raising horses and cattle. They own a large amount of stock and they are prompt.' And that the First National Bank of Fairmont Neb., had a surplus fund of $ 3,000, and undivided profits of $ 4,196. A copy of which writing has been hereto annexed and made a part thereof marked 'schedule A.' And thereupon the plaintiffs believing said representations, and all of them, to be true and not knowing otherwise and relying solely upon said representations of the defendant, were induced and did buy the said three promissory notes mentioned, and paid therefor on April 28, 1888, the sum of $ 2,521.80-100, but plaintiffs say that said statements and representations so as aforesaid made by the defendant were not true and were by the defendant known not to be true, and were made by defendant without any knowledge of the truth of any of said statements.

"The said names upon said notes, that is to say the makers and indorsers thereof were not responsible and were not prompt, and the said E. L. Martin was not a dealer in coal, and a stock feeder and shipper, nor was he doing a successful business, and the said note made by him for $ 800 was not secured by collaterals or at all; and the said J. W Walters was not a large and prosperous cattle grower or feeder, and did not pay his debts promptly or at all, and the said note for $ 1,000 made by said Walters, was not secured by collateral or at all; and the said firm of Chase & Walters was not in good financial circumstances, nor engaged in raising horses and cattle, nor did they own a large amount of stock, nor were they prompt; and the said First National Bank of Fairmont had no surplus fund or surplus, and no undivided profits; and the said E. L. Martin, J. W. Walters, the First National Bank of Fairmont and Chase & Walters, were each and all of them unable to pay their debts and were insolvent, remained so and still are insolvent; all of which defendant then well knew, and the plaintiffs have not been able to collect said notes or any part thereof, and are unable to obtain payment for any part thereof, and the same and all thereof are utterly worthless. And the said plaintiffs, by reason thereof, say that the said notes, nor either of them, were of any value to these plaintiffs, and the plaintiffs have lost the use of their money and the...