Marshall v. Ferguson

• Decision Date: 28 April 1903
• Citation: 101 Mo. App. 653,74 S.W. 393
• Parties: MARSHALL v. FERGUSON.
• Court: Missouri Court of Appeals

74 S.W. 393

101 Mo. App. 653.

MARSHALL v. FERGUSON.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

AGENTS—VIOLATION OF INSTRUCTIONS—LIABILITY TO PRINCIPAL—DAMAGES—INSTRUCTIONS—HARMLESS ERROR.

1. Where an agent who was directed to loan money to a third party, and to take as security a trust deed, violated his instructions by including in the trust deed a note owed by the third party to himself, without his principal's knowledge or consent, the agent was liable to the principal for the resulting damages.

2. Where plaintiff sued for a fixed sum and interest thereon, an instruction stating that if the jury found for plaintiff they should assess his damages at a certain sum, composed of the sum sued for and interest, was not prejudicial error.

Appeal from Circuit Court, Butler County; Jas. L. Fort, Judge.

Action by John B. Marshall against Thomas D. Ferguson. From a judgment for plaintiff, defendant appeals. Affirmed.

L. F. Dinning, for appellant. Mozley & Wammack, for respondent.

BLAND, P. J.

The conceded facts in this case are that M. L. Freeman and wife, on or about May 7, 1896, owned an 80-acre tract of land in Butler county, Mo., known as the "Fair Grounds," upon which the Sedalia Trust Company had a deed of trust to secure a promissory note past due, the principal and interest aggregating at that time $213.45; that they were being pressed for payment; that plaintiff put $213.45 in defendant's hands, which defendant agreed to loan M. L. Freeman and wife for the purpose of paying off the Sedalia Trust Company's loan; that defendant, to secure the $213.45, agreed to take from the Freemans their promissory note for that amount, bearing 8 per cent. interest payable to himself, and to secure the same by the deed of trust of Freeman and wife on a one-eighth interest in the Fair Grounds tract of land, and then transfer the note and deed of trust to plaintiff. Defendant took plaintiff's money, paid off the Sedalia Trust Company's debt with it, took the note of the Freemans, as agreed, for $213.45, payable to himself, and also took a deed of trust on one-eighth interest in the Fair Grounds tract of land to secure the note. The note was transferred by defendant to plaintiff. At the time of the transaction defendant held a past-due note made by M. L. Freeman to one Nickey for $312.50, which Nickey had indorsed and delivered to defendant, but defendant had lost his recourse on Nickey as indorser. This note defendant had secured in the same deed of trust given to secure the note for $213.45 held by the plaintiff. The deed of trust provided that in case of a foreclosure sale the two notes should be paid pro rata, if the proceeds of the sale were insufficient to pay both notes.

The proof is that the Freemans were insolvent; that there were two sales of the land under the deed of trust. At the first sale the plaintiff was the purchaser on his bid of $400, but there was some error or defect in the advertisement of the sale, and he declined to pay his bid and accept the trustee's deed. On the second sale Nickey bid in the land at one hundred and ten or one hundred and twenty dollars, and received a trustee's deed therefor. About four months thereafter he sold the land to plaintiff for a consideration of $400, and made him a deed to it. Plaintiff testified that he did not know that the $312.50 note of defendant was included in the deed of trust until after his note for $213.45 was past due and he commenced to take steps to collect it; that when defendant assigned and delivered the note to him he told him the deed of trust was in the recorder's office; that he (plaintiff) did not go there to see, and did not see it until after his note...