Kinealy v. Burd

• Decision Date: 16 November 1880
• Citation: 9 Mo.App. 359
• Parties: MICHAEL KINEALY, Appellant, v. JOHN W. BURD ET AL., Respondents.
• Court: Missouri Court of Appeals

9 Mo.App. 359

MICHAEL KINEALY, Appellant,

v.JOHN W. BURD ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Nov. 16, 1880.

1. An agent may bind his principal to the extent to which he is held out as competent by the principal, irrespective of any secret instructions.

2. In an action by an indorsee against the indorser, it is not necessary to set out in the petition all the indorsements.

3. Where all the indorsements have not been set out in the petition, an admission of the material allegations is not an admission that there have been no holders except those set out.

4. Where the case has been otherwise fairly tried, and the judgment is manifestly for the right party, the admission of irrelevant testimony is not ground for a reversal.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

M. KINEALY, pro se: The conditions under which the authority of a special agent is to be exercised forms part of the authority itself, and must be strictly observed or the act of the agent is void.--Story on Ag., sects. 133, 324; Berry v. Anderson, 22 Ind. 36; White v. Langdon, 30 Vt. 599.

CLINE, JAMISON & DAY, for the respondents: The petition alleges that Jamison indorsed the note to M. A. Wolff, who indorsed it to the plaintiff, who was the owner of the note sued upon when the first extension was made; and for said extensions, Burd, the maker of the note, executed his two notes for the interest, payable to M. A. Wolff, and paid him $40 in cash for said extension, without the consent or knowledge of said Jamison; which was a valid contract, with a valuable consideration, and hence discharged said Jamison as accommodation indorser. Likewise as to the second extension.--Pars. on Notes & Bills, 238; Gahn v. Niemcewicz, 11 Wend. 312; Globe, etc., Ins. Co. v. Carson, 31 Mo. 218; Rucker v. Robinson, 38 Mo. 154; McCune v. Belt, 38 Mo. 281; First National Bank v. Leavitt, 65 Mo. 562; Rathbone v. Warren, 10 Johns. 587; Clippinger v. Creps, 2 Watts, 45. At the maturity of the note, according to the proof, it was owned by Charles Bobb or his wife; the maker (Burd) applied to C. Bobb, who was agent of his wife, for an extension of the payment of said note, who referred him to M. A Wolff, who held the note, thus holding out to Burd that Wolff had authority to make said extension, and the extension was made by Burd with Wolff, he (Burd) executing his notes for the interest, payable to M. A. Wolff, and paying said Wolff $40 in cash for said extension, without the knowledge or consent of said Jamison; which was a valid contract, and hence releases said Jamison as accommodation indorser.-- Pickard v. Sears, 6 Ad. & E. 469-474; Rice v. Groffman, 56 Mo. 434; Forsyth v. Day, 46 Me. 176. The power of extension being thus given to M. A. Wolff and exercised by him, any private instructions given to him were incompetent, and the court below did not err in ruling out the same.-- De Baun v. Atchison, 14 Mo. 543; Anderson v. Coonley, 21 Wend. 279; Johnson v. Jones, 4 Barb. 369; Bryan v. Moore, 26 Me. 84; Whitehead v. Tuckett, 15 East, 400-408.

BAKEWELL, J., delivered the opinion of the court.

This action is upon a promissory note made by defendant Burd to the order of defendant Jamison. The petition alleges that defendant assigned the note by indorsement and delivered it to Wolff, who assigned by indorsement and delivered the note to the plaintiff. Defendant Jamison in person, and in writing, waived demand, notice, and protest. The separate answers of defendants Burd and Jamison put in issue no material allegations of the petition, but allege that the note was given for money lent to Burd by one Charles Bobb; that Jamison was merely an accommodation indorser; and that, at the maturity of the note, an agreement was made between the maker and the owner and holder of the note, without the knowledge of Jamison, extending the time of payment for one year. The answer also set up similar extensions for subsequent periods. There was a verdict and judgment against Burd and in favor of defendant Jamison, and plaintiff appeals. The testimony introduced by defendant showed that payment of the note was extended at maturity without the knowledge or consent of Jamison; that the note was owned at maturity by Mrs. Martha Bobb; that her husband, Charles Bobb, was attending to her affairs, and was authorized to act for her in the matter; that Burd applied to Martha Bobb and Charles Bobb for an extension, and was by them referred to Wolff, in whose hands the note was; that Charles Bobb, by authority of his wife, directed Wolff to grant the extension; and that the agreement to extend the note for one year was made in consideration of $40 then paid by Burd to Wolff, and of two notes covering the interest during the period of extension, which were received by Mrs. Bobb, and paid at maturity. These notes were made to the order of Wolff. Plaintiff, on his part, offered to show that when Bobb gave directions to Wolff to renew the note, he directed...