Hurt v. Cook

• Decision Date: 12 July 1899
• Parties: Hurt v. Cook et al., Appellants
• Court: Missouri Supreme Court

52 S.W. 396

151 Mo. 416

Hurt v. Cook et al., Appellants

Supreme Court of Missouri, First Division

July 12, 1899

Transferred from Kansas City Court of Appeals.

Affirmed.

Geo Hall & Son for appellants.

(1) The indorsement of the $ 2,000 Abner George note by the plaintiff, and the delivery of the same to her husband to use as collateral security was just as binding as to third persons as if she had been a feme sole. Secs. 6864 and 6869 R. S. 1889; Leete v. State Bank, 115 Mo. 184; Brown v. Dressler, 125 Mo. 589; Hiltenbrandt v. Robitzsch, 62 Mo.App. 437. (2) The plaintiff having indorsed the $ 2,000 Abner George note in blank and delivered it to her husband to pledge as security for the debts of Elder & Hurt, she stands in the same relation to the defendants as a feme sole, in respect to the note, and having clothed her husband with apparent ownership of the note, she is bound by his acts as to a bona fide purchaser for value even though the husband exceeded his authority. Quigley v. Bank, 80 Mo. 289; Locke v. Lewes, 124 Mass. 1; Bank v. O'Connel, 23 Mo.App. 165; Bank v. Murdock, 62 Mo. 70; Eggerman v. Heaschen, 56 Mo. 123; Conegel v. Petifish, 51 Mo.App. 264; McClain v. Abshire & Millbank, Vol. 1, Mo.App. Rep. 754; Besson v. Eveland, 26 N.J.Eq. 471; Homes v. Scruggs, 94 U.S. 23; Bank v. Hamilton, 34 N.J.Eq. 162; Dymock v. Railroad, 54 Mo.App. 400; Lee v. Turner, 89 Mo. 489; Newhoff v. O'Riley, 93 Mo. 164; International Bank v. German Bank, 71 Mo. 183. (3) The defendant having given an extension of time on the $ 1,003.78 note secured by mortgage on the Elder & Hurt stock of drugs, in consideration that the $ 2,000 note was given as collateral security for the same, constituted them innocent purchasers for value, as also did the several loans or overdrafts thereafter made on the agreement that the $ 2,000 note should be held as security. Napa Valley Wine Co. v. Rinehart, 42 Mo.App. 171; Ayers v. Bank, 79 Mo. 421; Bullene v. Coales, 79 Mo. 426; Conrad v. Fisher, 37 Mo.App. 413; Watson v. Woody Printing Co., 56 Mo.App. 145. (4) It was the duty of the defendants to collect the $ 2,000 collateral note, and they are entitled to the costs and expenses of collecting the same. 3 Rand. on Com. Paper, sec. 1677; Joliet Iron Co. v. Brick Co., 25 Am. Rep. 341; Crossman v. Whitall, 16 Neb. 592; Ludden v. Marsters, 16 Neb. 654; Montague v. Stotts, 34 Am. St. Rep. 736; Rumsey v. Laidley, 26 Am. St. Rep. 935; Griggs v. Day, 32 Am. St. Rep. 704. (5) Since the plaintiff made no sufficient tender of the amount she claimed to be due defendants, the court erred in giving her first instruction. Henderson v. Cass Co., 107 Mo. 50; Wordner v. Levy, 48 Mo.App. 469; Kitchen v. Clark, 1 Mo.App. 430; McGuire v. Brickman, 58 Mo.App. 307. (6) The Married Woman's Act of March 25, 1875, sec. 6869, R. S. 1889, did not apply to marriages then in existence. The plaintiff and A. R. Hurt having married prior to said time, the husband had the right to reduce the wife's choses to his possession and his reduction of the $ 2,000 note into his possession after said time was legal and deprived the plaintiff of all right thereto. Leete v. State Bank, 141 Mo. 574; s. c., 115 Mo. 184; Arnold v. Willis, 128 Mo. 145. And the indorsement of the note by plaintiff in the presence of her husband by her direction, was sufficient to pass the title. Menkens v. Heringhi, 17 Mo. 297; McClain v. Weidemeyer, 25 Mo. 364. Plaintiff has been sui juris since the enactment of sec. 6864, R. S. 1889, except as to her right to sue her husband in actions at law and the conveyance of her real estate. That act necessarily repeals all prior repugnant laws. Long v. Martin, 71 Mo.App. 569; Huss v. Culver, 70 Mo.App. 514; Brown v. Dressler, 125 Mo. 589. Under section 6864 plaintiff was clothed with all the rights, powers and burdens of a feme sole and her blank indorsement of the $ 2,000 note and the delivery of the same to her husband, constituted her husband her agent and she was as completely estopped by his acts, declarations and dealings with third parties as if the relation of husband and wife did not exist. Long v. Martin, 71 Mo.App. 569; Farley v. Stroeh, 68 Mo.App. 85; McLachlin v. Barker, 64 Mo.App. 511; Leete v. State Bank, 115 Mo. 184; May v. Trust Co., 138 Mo. 275.

Harber & Knight, H. J. Alley and H. G. Orton for respondent.

(1) The note of Abner George to plaintiff could not become the property of her husband except by express assent of plaintiff in writing coupled with his possession. R. S. 1889, sec. 6369. Blank indorsement of note by plaintiff and delivery of same to husband gave no property in same to him. The bank could receive none from him in his individual capacity. McGuire v. Allen, 108 Mo. 403. (2) The note having been given to her husband by the plaintiff for a specific purpose, viz., to pledge it as security for the $ 526.77, and he having so pledged it, his authority with respect to the same then ceased. He was plaintiff's special agent for that sole purpose and defendants were bound to ascertain the scope and limit of his authority. There was nothing in this case to show that he had any general authority to act for plaintiff and certainly nothing to show that he had any special authority to dispose of this note for his own use. Bearing v. Pierce, 40 Am. Dec. 534; Brown v. Johnson, 51 Am. Dec. 121. (3) The blank indorsement was, as between plaintiff and defendants, sufficient to transfer to them the legal title to the note and when delivered to them by her agent for the specific purpose of securing the $ 526.77, her husband had no further interest in the same. It was defendant's property then for the purpose of securing this debt, she having an equity in the same for the residue of the note after payment of the $ 526.77, and there is not a scintilla of proof that she ever gave him any further interest in the note or authority over it. The defendant admits that when he took the note as security for the $ 526.77, he then knew it was her property and he does not claim he took steps to ascertain the authority of her husband to dispose of her note. McGuire v. Allen, 108 Mo. 403; Franc v. Nirdlinger, 41 Oh. St. 293. At most, in order that plaintiff be estopped from showing that the indorsement did not clothe her husband with ownership of the note, the bank must have been ignorant of the domestic relation that existed between them. To hold that the plaintiff would be estopped by the indorsement as to a party who knew of the domestic relation existing between plaintiff and her husband, would be to do by estoppel what she could not do by contract, unless by the statutory mode, viz.: "By writing full authority shall have been given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit." Bish. on Contracts (En. Ed.), sec. 234; Galbreath v. Newton, 30 Mo.App. 389; Morgan v. Railroad, 96 U.S. 716; Delaphaine v. Hitchcock, 6 Hill 17; Acton v. Dooley, 74 Mo. 63. (4) The defendant, by claiming that the note was held for more than the $ 526.77, to wit, about $ 2,000 and a refusal to take the former sum, waived the actual production of money. Berthold v. Berthold, 37 Mo. 586; Thome v. Mosher, 20 N. Y. Eq. 257; Whelan v. Reilley, 61 Mo. 565. (5) The appellant has attempted to thrust a new issue into this case, as the effect of the Act of March 25, 1875. This question is not in the record, and there is nothing in the record tending to show that plaintiff and her husband were married prior to March 25, 1875. The record shows that the property in controversy was not acquired until August 6th, 1890. The doctrine that law can not change the accrued rights of either husband or wife is well founded but it has never been held that it was not competent for the legislation to act upon the property rights arising out of the marital relations accruing after the passage of law. It has been distinctly held that legislation could regulate the rights of the parties as to all rights accruing subsequently to such law. Chouteau v. Railroad, 122 Mo. 375; Kennerly v. Ins. Co., 11 Mo. 204; Ailey v. Burnett, 134 Mo. 313.

OPINION

BRACE, P. J.

This is an appeal by the defendants, to the Kansas City Court of Appeals, from a judgment of the circuit court of Grundy county in favor of the plaintiff for the sum of $ 1,935.11. The judgment of the circuit court was affirmed by the Kansas City Court of Appeals, but the case was certified here on the ground that one of the judges of that court deemed the decision contrary to a previous decision of this court.

The dissenting opinion of Smith, P. J., contains the following sufficient statement of the case:

"This is an action to recover of the defendants the proceeds of a certain negotiable promissory note collected by them and alleged to have been wrongfully detained, etc.

"Elder & Hurt were a co-partnership of druggists engaged in business at the village of Galt, in this State. The plaintiff is the mother-in-law of the former and the wife of the latter. In the early part of February, 1891, the defendants who were private bankers also doing business in said village, held a number of claims against Elder & Hurt, which had been sent them for collection. Hurt applied to the defendants for a loan of $ 526.77 to the co-partnership, with the proceeds of which he proposed to pay the claims the bank held. He offered, as collateral security, a note for two thousand dollars, made by Abner George and payable to the order of plaintiff, due and payable in the month of September following and which said note was indorsed by plaintiff in blank. The defendants made the loan applied for, taking the note of Elder & Hurt therefor and accepted the said George note as a pledge to secure the payment of the said note of Elder & Hurt. ...