Huston v. Tyler

• Decision Date: 22 June 1897
• Citation: 36 S.W. 654,140 Mo. 252
• Parties: Huston v. Tyler, Appellant
• Court: Missouri Supreme Court

36 S.W. 654

140 Mo. 252

Huston v. Tyler, Appellant

Supreme Court of Missouri, Second Division

June 22, 1897 ^[*]

Rehearing Denied 140 Mo. 252 at 267.

Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.

Reversed and remanded.

Thomas J. Porter, Ben. J. Woodson, and B. R. Vineyard for appellant.

(1) An agent acting in good faith for his principal whose name is disclosed to a third person with whom he may be dealing as such agent, can not be held personally liable to such third person, in the absence of a special agreement on the part of such agent to become individually responsible. Mechem on Agency, secs. 546 and 555. (2) This principle of non-liability of an agent, where the name of his principal is disclosed, is as much applicable to note brokers, or those engaged in borrowing money for others, as to any other kind of agents. Tiedeman on Com. Paper, sec. 245; Mechem on Agency, secs. 929 and 956; Lyons v. Miller, 6 Gratt 427. (3) As said by the New York Court of Appeals, on the subject of implied warranty: "The question as to whether there was an implied warranty depends upon the facts as to whether the defendant was an agent, and disclosed his agency to the plaintiff, or whether that fact was known and understood by its officers in making the purchase." Bank v. Gallaudet, 120 N.Y. 308; Worthington v Cowles, 112 Mass. 30; Mechem on Agency, secs. 546 and 556; Whitney v. Wyman, 101 U.S. 392. (4) Defendant had a right to go to the jury upon the circumstances attending the transactions which apprised plaintiff of his agency. If plaintiff knew, or from the circumstances ought to have known, that defendant was dealing simply as the agent of Smith, then plaintiff should not have recovered. Worthington v. Cowles, 112 Mass. 30; Klosterman v. Loos, 58 Mo. 290; Hartzell v. Crumb, 90 Mo. 639; Mechem on Agency, sec. 546. (5) With the admission of good faith and the proof by defendant and his witnesses that plaintiff had been informed of the fact that defendant was acting solely for and as the agent of Smith, it is quite apparent that the court had no right to instruct the jury peremptorily to find for plaintiff. Page v. Lathrop, 20 Mo. 594. (6) Plaintiff's petition being based on what plaintiff charges to be an express agreement between himself and defendant, he ought not to have been permitted to recover in the absence of proof of that agreement. He could not recover on account of tortious act of the defendant. Ogden v. Reymond, 22 Conn. 385; Carson v. Cummings, 69 Mo. 325; Sumner v. Rogers, 90 Mo. 324. (7) Nor could he recover on any implied warranty as to the genuineness of the signatures to the note. An express agreement or warranty excludes the idea or consideration of an implied one. Internal & Co. v. Smith, 17 Mo.App. 264; Baldwin v. Van Deusen, 37 N.Y. 487; Denny v. Foster, 42 N.H. 175; McGrew v. Fletcher, 35 Mich. 104; Yeats v. Ballentine, 56 Mo. 539; Carson v. Cummings, 69 Mo. 325; Sumner v. Rogers, 90 Mo. 324. (8) The contract set up in the petition charging that defendant agreed (not alleged or proven to be in writing) to procure and deliver to plaintiff the note of the character and description mentioned therein, is within the the statute of frauds. Allen v. Richard, 83 Mo. 55; Springer v. Kleinsorge, 83 Mo. 152; Fine v. Hornsby, 2 Mo.App. 61; 8 Am. and Eng. Ency. of Law, p. 710.

Brown & Pratt, Vinton Pike, and Willard P. Hall for respondent.

(1) An agent warrants his authority to act for those for whom he assumes to act; and this is true, although the agent may honestly believe that he has the authority and makes no express representation thereof. Mechem on Agency, secs. 542-546; Story on Agency, sec. 264; Farmers' Trust Co. v. Floyd, 26 N.E. 110; White v. Madison, 26 N.Y. 117; Bishop on Con. 1120; Wharton on Agency, sec. 524; 1 Parsons on Con. [6 Ed.] 67. (2) The measure of damages in such case is what the other party to the contract would have been entitled to recover on the contract had it been authorized. 3 Sutherland on Dam., pp. 52-59. (3) The petition in this case is not based upon an agreement by Tyler to procure a note signed by the parties named; the agreement is set out by way of inducement in connection with all the other facts connected with the transaction. The cause of action grows not out of the single fact referred to, but out of all the facts stated in the petition. It was at common law a mooted question as to whether the form of action on the facts stated was properly in assumpsit or on the case. But under our code there is only one form of action. All the facts being stated in the petition, the plaintiff is entitled to the relief, if any, which the law gives him on those facts. Trust Co. v. Floyd, 26 N.E. 110; White v. Madison, 26 N.Y. 117.

Brown & Pratt, Vinton Pike, and Willard P. Hall for respondent on motion for rehearing.

(1) The court overlooked the distinction between this case where the agent undertook and assumed to complete the contract by delivering the note to the payee named therein, and the case in which an agent or broker sells a completed note. Jefts v. York, 10 Cush. 592; Byars v. Doore, Adm'r, 20 Mo. 284; Wharton on Agency [Orig. Ed.], secs. 524, 541; Story on Agency [8 Ed.], sec. 264; 1 Parsons on Con. [6 Ed.], pp. 66, 67; Bishop on Con., sec. 1120. (2) The court overlooked the fact that the defendant made no objection in the trial court that there was a variance between the proof and the allegations of the petition. Such objection can not be made in this court for the first time. Bank v. Leyser et al., 22 S.W. 504; Meyer v. Chambers, 68 Mo. 626; Fischer v. Max, 49 Mo. 404. But there was no variance. The rule is that the pleader may declare an express non-special contract and recover upon proof of an implied promise. But he can not declare on a special contract, and recover upon proof of an implied promise, nor vice versa. Foerster v. Foerster, 38 N.E. 426. (3) The court erred in holding that this was an action on contract, and that at common law the action would have been denominated "express assumpsit." Byars v. Doore, Adm'r, 20 Mo. 284; Hamlin v. Abell, 120 Mo. 198; Ballon v. Talbott, 16 Mass. 461; Lane v. Corr, 25 A. 820; Cole v. O'Brien, 51 N.W. 316; Abbey v. Chase, 6 Cush. 54; Ogden v. Raymond, 22 Com. 379; Bartlett v. Tucker, 104 Mass. 339; McHenry v. Duffield, 7 Black. 41; Hall v. Crandall, 29 Cal. 568; Duncan v. Niles, 32 Ill. 532; Long v. Colburn, 11 Mass. 97; Ibets v. York, 10 Cush. 392; 1 Chitty on Plead. *138. (4) The court erred in holding that there was no proof of the agreement between plaintiff and defendant as pleaded. (5) The court erred in holding that the instruction given by the trial court, directing the jury to find for the plaintiff, would have been improper, even if there had been no conflict in the testimony. (6) The court erred in holding that on the facts stated by the plaintiff the question should have been submitted to the jury whether he knew, or could have known by the use of reasonable diligence, that the defendant was acting as the agent of Thomas Smith.

Porter & Woodson and B. R. Vineyard for appellant on motion for rehearing.

(1) The case of Hamlin v. Abell, 120 Mo. 188, in no way conflicts with the opinion of the Supreme Court, as already rendered in this case. (2) An express agreement or warranty excludes the idea or consideration of an implied one. International Co. v. Smith, 17 Mo.App. 264; Baldwin v. Van Deusen, 37 N.Y. 487; Denny v. Foster, 32 N.H. 175; McGrew v. Fletcher, 35 Mich. 104; Waldhier v. Railroad, 71 Mo. 514; Schneider v. Railroad, 75 Mo. 295; Fuchs v. City, 34 S.W. 513; Harty v. Railroad, 95 Mo. 368. (3) In actions for deceit the petition must charge that the false representations were fraudulent. Hamlin v. Abell, 120 Mo. loc. cit. 201. (4) The court erred in instructing the jury to find for the plaintiff. Mechem on Agency, sec. 546; Wharton on Agency, sec. 531; Worthington v. Cowles, 112 Mass. 30. (5) The argument of counsel on the motion for a rehearing, referring to the liability of sub-agents, can have no application to this case. There could be no sub-agency under the evidence introduced.

OPINION

Sherwood, J.

Action for the sum of $ 2,500. The nature of the action best appears from the petition, which, omitting caption, etc., is the following:

"That the defendant was at the time hereinafter mentioned, and now is engaged at the said city of St. Joseph, in the business of obtaining loans of money for others on their promissory notes, and that the plaintiff well knew him to be engaged in said business; that the defendant at said city on the 8th day of April, 1892, prosecuting the business aforesaid,* entered into a contract and agreement with the plaintiff by which the latter agreed to loan twenty-five hundred dollars upon the promissory note of the following parties, to wit, Thos. M. Smith, Pat Curtin, Philip Weckerlin and Jane E. Smith, which said note the defendant undertook and agreed to procure and deliver to plaintiff; that thereafter the defendant presented and delivered to the plaintiff a promissory note for the sum of twenty-five hundred dollars, purporting to be signed by all of said parties, and represented to the plaintiff that it was the note agreed upon between them; that the plaintiff believed defendant's representation to be true, and relying thereon and being induced thereby, he loaned the sum of twenty-five hundred dollars upon said note and delivered said sum to the defendant and received said note; that the said note was not in fact signed by any of the parties whose names appear signed thereto, except Thomas M. Smith; that on the contrary, the signatures of all the other parties to said note were forged thereto; that the said Thomas Smith was at all the times herein mentioned and...