Higgins v. Dellinger
| Decision Date | 31 January 1856 |
| Citation | 22 Mo. 397 |
| Parties | HIGGINS, Defendant in Error, v. DELLINGER, Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. A party who is compelled to pay a note which he signed as security for another, who gave it for money borrowed by him as agent for a third party, may recover the amount directly from him for whom the money was borrowed; and it makes no difference that the agent did not disclose his agency, or that the money was loaned and the note signed by the security upon his individual credit.
2. A letter written by the party sought to be charged as principal, not denying his liability, but regretting his inability to meet the demand, is evidence sufficient to sustain a finding by a jury of the fact of agency, although written in answer to a letter falsely stating that he had signed the note.
Error to Cole Circuit Court.
Action for money paid by plaintiff to the use of the defendant, Frederick Dellinger.
At the trial, it appeared in evidence that in 1848 Samuel Dellinger applied to William C. Young, stating that his brother, the defendant, who was then in Virginia, had written requesting him to send him some money, and that he had none on hand, and desired to borrow. Young consented to loan him $300, and at his request enclosed a draft for that amount in a letter to the defendant. In the spring of 1849, Young applied to Samuel for security for the money loaned, who thereupon executed a bond for the amount, with plaintiff as security. At the foot of the bond, a blank was left opposite the first seal for the signature of the defendant, which, however, was never obtained. This bond was afterwards assigned by Young to W. P. Riggins, and was allowed as an offset in a suit brought by plaintiff against said Riggins. The present suit is brought to recover the amount thus paid by plaintiff.
Young testified that he loaned the money to Samuel Dellinger upon his individual responsibility, and did not know the defendant in the transaction. He did not know whether Samuel owed the defendant that amount, or whether he loaned it to him. He had previously heard him say that the defendant had an interest in the estate of a deceased brother, who died in Pulaski county, Missouri.
The plaintiff read in evidence two letters from defendant to him, expressing regret at his inability to relieve him from the payment of the bond given to Young and a desire that an arrangement previously made that the money should be paid out of his share in the estate of his deceased brother might be carried out.
The defendant, in rebuttal, read in evidence a letter from the plaintiff to himself, in reply to which the two letters above referred to were written, in which it was stated that the note given to Young was signed by the defendant.
The Circuit Court gave the following instructions asked by plaintiff, to which the defendant excepted:
1. If defendant procured Samuel Dellinger to get the money for him, and got Young to send it to him, and he received it, the jury must find for the plaintiff, and may allow interest; and in such case, it can make no difference that Samuel gave his own note for the money, with plaintiff as security.
3. If the money was borrowed by Samuel Dellinger for the defendant, the fact that Young looked to Samuel and the plaintiff alone for payment can not prevent a recovery against the defendant.
The court gave the following instruction, of its own motion, to which the defendant excepted: “If the jury believe from the evidence that Samuel Dellinger borrowed the money loaned by William C. Young for himself, and not as agent of the defendant, and the said Samuel loaned it to the defendant, and that Samuel Dellinger, as principal, and the plaintiff as security, gave their bond to Young for the amount, the estate of Samuel Dellinger is liable to the plaintiff for the amount of said debt, and not the defendant.”
There was a verdict for the plaintiff.
M. M. Parsons, for plaintiff in error.
White and Gardenhire, for defendant in error, cited Story on Agency, § 58, 59.
If Samuel Dellinger borrowed the money as the agent of his brother Frederick, and afterwards, to secure its repayment, gave his own note, with the plaintiff as his security, who subsequently paid the money, it was the duty of the defendant to refund it to the plaintiff, and the law will imply a promise between these parties to that effect; and if this were so, it is quite immaterial in this case that the agent did not divulge his agency, or the name of his principal, or that the money was loaned originally by Young, and the...
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