Morse v. DiEbold

• Decision Date: 16 May 1876
• Citation: 2 Mo.App. 163
• Parties: JOHN W. MORSE, Respondent, v. CARL DIEBOLD et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 163

JOHN W. MORSE, Respondent,

v.CARL DIEBOLD et al., Appellants.

St. Louis Court of Appeals, Missouri.

May 16, 1876.

1. Where the testimony on opposite sides of a material issue is flatly contradictory, the finding of the jury is conclusive, and cannot be reviewed by an appellate court.

2. Evidence of former transactions by an agent, similar to the one in controversy, is admissible as tending to show the extent of his authority, when there is other evidence tending to prove that such transactions were known and approved by the principal at the time of their occurrence.

3. A letter written by the principal, declaring that the agent was invested with certain powers, is proper evidence against the principal to that effect, although not addressed to the adverse party in the cause.

4. If a principal knowingly allow his agent to indorse and discount notes, taken in the course of business, with the name of the principal, and take no steps to make known that the agent has no authority so to do, he will be liable on an indorsement so made by the agent.

5. It was not erroneous to refuse an instruction to the effect that “authority given to an agent to discount at one place, or with one person, does not imply the authority to discount at another place, or with another person,” when the only tendency of the testimony, if any, was to prove a general authority to discount at all places and with all persons, as occasion might require.

APPEAL from St. Louis Circuit Court.

Affirmed.

Joseph T. Tatum, for appellants, cited: Story on Ag. sec. 87; 1 Pars. on Con. 48; Black v. Vandervater, 1 Sandf. 265; Lawrence v. Gebbard, 41 Barb. 517; Humphreys v. Haven, 12 Minn. 298; Paige v. Stone, 10 Metc. 160; Combs v. Scott, 12 Allen, 493; Sone v. Palmer, 28 Mo. 539, last paragraph on 542; Pope v. Risley, 23 Mo. 185; Swearingen v. Knox, 10 Mo. 31; Wahrendorf v. Whitaker, 1 Mo. 146; Sweeting v. Pearce, 9 C. B. (N. S.) 534; Graham v. United States Savings Assn., 46 Mo. 186; 1 Pars. on Notes & Bills, 119; Atkins v. Nicholson, 31 Mo. 448; Chouteau v. Filley, 50 Mo. 174; Davidson v. Stanley, 2 Man. & G. 721; Hunt v. Chapin, 6 Lans. 139.D. D. Duncan, for respondent, cited: Chitty on Bills, 25; 2 Greenl. on Ev. sec. 60; Franklin v. Globe Life Ins. Co., 52 Mo. 461; Sumner v. Saunders, 51 Mo. 89; Bronson v. Chappell, 12 Wall. 681; DeBaum v. Atchinson, 14 Mo. 543; Fatman v. Leet, 41 Ind. 133; Medbury v. New York & Erie R. R. Co., 26 Barb. 564; Merchants' Bank v. State Bank, 10 Wall. 649.

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

The petition charged defendants as indorsers of a promissory note for $370, executed in their favor by M. B. Lindsay, and by them indorsed and delivered to plaintiff. The indorsement was thus: “Diebold & Kienzle, by Geo. F. Cochnower, Agt. D. & K.” The sworn answer of defendants denied all knowledge of the note or of its indorsement; denied that they had ever delivered it to plaintiff, or that it was ever indorsed or delivered by any person having authority from them so to do. A reply was filed, alleging that the indorsement was made by an agent duly authorized by defendants for that purpose. The cause was tried before a jury, whose verdict was for the plaintiff.

It appeared from the testimony that defendants were manufacturers of iron safes, in the city of Cincinnati, and that George F. Cochnower was their agent, having a store or salesroom for their wares in St. Louis. The testimony was full of conflicting statements touching the extent of the agent's powers. Cochnower testified that he was defendants' “general agent, with full powers, except the power of making notes.” He said, further: “I was held out, and did in reality have full power, to transact all the business of Diebold & Kienzle in St. Louis, the same as if it were my own. The only restriction upon me was that I could not make notes. * * * I signed checks, indorsed checks, notes and drafts, and gave receipts, all with the personal knowledge of the said firm, and without any objection from them. * * * When I took notes, they were always made payable to the order of Diebold & Kienzle, and, if necessary, I had them discounted by indorsing them with the name of Diebold & Kienzle, by me as their agent. All this I did with their knowledge, and this was the usual course of my business.” The witness identified the note in suit as one which was so indorsed and discounted by him in the course of his business as agent, and stated that he had accounted for the proceeds in his monthly statement to his principals. The defendants also testified. Each of them declared that Cochnower's agency was limited to the sale of safes and the soliciting of orders, and each flatly and specifically contradicted every statement of his that was inconsistent with that limitation. They denied that any report was ever made to them of the note in suit, or of the transaction in which it was given, or that any proceeds of either had ever come to their hands. These general statements were aided, respectively, by testimony of corroborative tendencies on both sides. It is unquestionable that, if the plaintiff's testimony was all true, he was entitled to recover. It is equally unquestionable that if, on the other hand, the defendants' testimony must be held conclusive, the verdict was wrong. Such a comparison and its results will, in all cases, furnish a final test of the jurisdiction of an appellate court over the question at issue. This direct conflict between the material and controlling testimony adduced on one side and that upon the other infallibly makes the jury the tribunal of last resort, upon the question of fact, and closes the avenues of reviewing inquiry against an appellate court. Our reports teem with judicial rulings to this effect, repeated again and again; and they must, doubtless, yet be repeated, as long as appeals and writs of error shall be found in our system of jurisprudence. If counsel, in the strong impulses of faithful advocacy, could oftener pause to apply the...