Michael v. Jones

• Decision Date: 31 October 1884
• Citation: 84 Mo. 578
• Parties: MICHAEL, Appellant, v. JONES, Administratrix.
• Court: Missouri Supreme Court

84 Mo. 578

MICHAEL, Appellant,

v.JONES, Administratrix.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

James Taussig for appellant.

(1) Jones, the defendant's intestate, had no right under the law, to carry on the business of his ward, or to make the estate of his ward liable for debts contracted in continuing and conducting such business. Exchange Bank v. Tracey, 77 Mo. 594; Michael v. Locke, 80 Mo. 548. (2) Having no such right, he became personally liable to the plaintiff. ( a) Where a person assumes to act for or in behalf of another without authority, an action can be maintained on the contract against the person improperly acting as agent. Jones was liable to the plaintiff for the value of property delivered to him if he had no power to bind Joseph H. Locke. Byars v. Doores, 20 Mo. 284; Lapsley v. McKinstry, 38 Mo. 247; Blakeley v. Bennecke, 59 Mo. 193; Wright v. Baldwin, 51 Mo. 269 (discussing Smout v. Illberry, 10 M. & W. 1.); 1 Parsons on Cont. (6 Ed.) *67, notes; 1 Wharton on Agen. § 523; Hill v. Banister, 8 Cow. 31; Sumner v. Williams, 8 Mass. 162; Grafton Bank v. Flanders, 4 N. H. 239 (and cases cited in opinion), see page 245 as to moral estoppel, and page 249 as to liberal rule to be applied as to remedies where sound legal principles support a case. 1 Am. Lead. Cas. (5 Ed.) *p. 636-8, N; Rathbon v. Budlong, 15 John. (N. Y.) 1-3. An agent is liable on contract, and the burden is on him to show he had authority. Meech v. Smith, 7 Wend. 315-19; Bay v. Cook, 2 Zabriskie (N. J.) 343. Where words of a pretended agent, stripped of language he had no right to use, import a liability, he can be held, and it is immaterial that both parties are in a position to judge as to extent of authority. 2 Smith's Lead. Cas., p. 366-7; Thatcher v. Dinsmore, 5 Mass. 299. Jones was not a mere agent but a trustee, and as such personally liable. Hill on Trustees (3 Am. Ed.) 535-6; Perry on Trusts (3 Ed.) § 454; Schouler on Dom. Rel. 457; Rittenhouse v. Ammerman, 64 Mo. 200; Merritt v. Merritt, 67 Mo. 156. (3) The instruction given by the circuit court for the defendant was against the evidence which was uncontradicted and to the effect that Jones promised to pay for the wood delivered by the plaintiff. The promise of a guardian to pay his ward's debts is not collateral within the statute of frauds, and, therefore, it need not be expressed in writing. Schouler's Dom. Rel. (2 Ed.) *464-6.

A. R. Taylor for respondent.

MARTIN, C.

The plaintiff alleges in his petition that he sold and delivered to Robert L. Jones in his lifetime large quantities of wood of the price and value of $6,525.35, and that, after deducting all credits and payments on account thereof, there remains a balance still due him in the sum of $2,932.25, for which he asks judgment. The answer in the case was filed before the death of Mr. Jones. In it he denies the allegations of the petition, except as thereinafter stated by him. He pleads as a defence that the wood, for the price of which plaintiff sues, was sold and delivered to him as guardian of Joseph H. Locke, an insane person, whose estate and body he had charge of as guardian, by virtue of appointment of the probate court; that at the time of the sale thereof plaintiff knew that defendant was acting only in the capacity of guardian, and not otherwise; that at the time of such sale the agreement and understanding between plaintiff and defendant was that defendant was in nowise to be personally bound to pay for said wood, and that the plaintiff relied wholly upon the estate of said Locke for his pay, and never intended to hold defendant individually liable therefor. He also alleges that none of said wood was received to his use or benefit, but that it was all received to the use and benefit of the estate he had in charge.

The issues thus raised were tried by the court without the intervention of a jury, and judgment was rendered in favor of defendant, who is the widow and administratrix of said Robert L. Jones. The plaintiff appealed from this judgment, accepting an affirmance pro forma in the St. Louis court of appeals. It is proper for me to mention in this connection that the plaintiff instituted an action in equity against the assets of the estate of said Locke in the hands of Mr. Lancaster, who had succeeded Mr. Jones as guardian, for the same wood mentioned in this case, alleging in his petition substantially the material facts pleaded specially in the defendant's answer. In his petition he averred that the wood was sold and delivered for the use and benefit of the estate of said Locke, in the business of manufacturing lime and cement, which the guardian of said estate undertook to carry on, and did carry on after the death of said Locke, for the benefit of his wife and children, the beneficiaries of his estate. On appeal to this court it was held that the guardian had no authority, as such, to subject the assets of the estate under his charge to the risks and hazards of the manufacturing business undertaken by him, and that the plaintiff, furnishing his wood with full knowledge of the guardian's want of power to incur new obligations, acquired no lien upon the assets of the estate....