Humphrey v. Jones

• Decision Date: 31 October 1879
• Citation: 71 Mo. 62
• Parties: HUMPHREY v. JONES, Plaintiff in Error.
• Court: Missouri Supreme Court

71 Mo. 62

HUMPHREY

v.JONES, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1879.

Error to Louisiana Court of Common Pleas.--HON. G. PORTER, Judge.

REVERSED.

In November, 1868, defendant was sole director of school district No 4, township 54, in Pike county. The district being without a school house, a meeting of citizens was held for the purpose of devising some plan to procure one Both plaintiff and defendant attended the meeting and participated in its proceedings. It was unammously agreed by the meeting that the district should borrow money and defendant was instructed to draw up and sign the note for the district. Acting upon this instruction, he executed the instrument set out in the opinion of the court, A copy of the school law was examined at the meeting and generally discussed, and it was agreed that the directof had power to borrow money and execute the note of the district. It was the understanding of all present that the note was the note of the district, and that the district was bound for its payment. Plaintiff testified that this was his understanding. The party of whom they proposed to borrow the money refused to loan to the district without security, and thereupon plaintiff and the other parties whose names appear upon the note, signed as sureties for the district. Afterward, the district failing to pay plaintiff and another one of the sureties paid off the note, and plaintiff brought this suit against defendant for his proportion of the amount paid.

Elijah Robinson for plaintiff in error, cited in argument Dillon on Munic. Corp, p. 213; Musser v. Johnson, 42 Mo. 74; McClellan v. Reynolds, 49 Mo. 312; McGee v. Larramore, 50 Mo. 425; Klostermann v. Loos, 58 Mo. 290; Smout v. Ilberry, 10 Mees. & Wels. 1; Stone v. Huggins, 28 Vt. 617.

Henry Flanagan, W. H. Biggs and Cyrus Smith for defendant in error.

The vice of the contention of the plaintiff in error is, that he assumes the existence of a corporation, whose agent he claims to have been, when no such corporation existed at the time the note was made. No principal being in existence, against whom the note could be enforced, the defendant, with the others who signed it, became personally liable to pay it. If a person assumes to act as the agent of another, or of a corporation, it is his duty to see that there is a principal in being, who is to be bound by his acts. Hurt v. Salisbury, 55 Mo. 310; Lapsley v. McKinstry, 38 Mo. 245; Stone v. Wood, 7 Cow. 454; Tippets v. Walker, 4 Mass. 595.

On Rehearing.

SHERWOOD, C. J.

The original opinion in this case was based upon an assumed similarity between it and the one which it apparently followed. Upon a more careful examination of the two cases, however we find them totally unlike in facts and consequently the law applicable to them. In the former case there were three directors, who endeavored to blird the school district by separate action, and not as a board; and we held the district could only be bound by the directors when strictly acting within the limits of their official capacity. Here, there, is but one director, and the question is, whether he, having failed to bind the school district by the contract which he signed, is himself individually bound thereby. The note sued on is in this form:

$700.

NOVEMBER 3d, 1868.

One day after date I, as director of sub-district No. 4, township 54, promise to pay to George T. Pitzer, or bearer, the sum of seven hundred dollars, value received, negotiable and payable without defalcation or discount, with interest from date at the rate of ten per cent per annum. William Jones, director of sub district No. 4, T. 54, R. 1, Pike county, Missouri.

Signed

GEORGE K. PITZER,

FOSTER HILL,

AZAKIAH HUMPHREY,

MARTIN HANEY.

It is conceded on all hands that the utmost fairness characterized the transactions, which resulted in the execution of the note by the defendant. Neither that instrument, nor the evidence adduced at the trial give the slightest countenance to the idea that Jones intended to be bound or that those who urged and directed him to execute the note, intended him to assume any personal obligation. At the “meeting,” called for the purpose of raising the necessary amount to build the school house, and at which meeting the plaintiff, who acted as secretary, as well as the other signers of the note were present, Jones was directed to draw up and sign the note “so as to bind the district.” “It was intended as a district note and the agreement was that the note was executed as the note of the district.” A copy of the school law was in use at the meeting, and all...