Musser v. Johnson

• Decision Date: 31 October 1868
• Parties: RICHARD H. MUSSER, Plaintiff in Error, v. ADAMANTINE JOHNSON, Defendant in Error.
• Court: Missouri Supreme Court

42 Mo. 74

RICHARD H. MUSSER, Plaintiff in Error,

v.ADAMANTINE JOHNSON, Defendant in Error.

Supreme Court of Missouri.

October Term, 1868.

Error to Circuit Court of St. Louis County.

R. H. Musser, plaintiff in error, pro se.

I. The assignment of the claim of the North Missouri Railroad for $2,400, paid to Abell, Cunningham, Johnson, et al., is sufficient as the deed of the corporation. (31 Mo. 193; 1 Am. Lead. Cas. 453; 5 Wheat. 336.)

II. The use of the word “we” in the assignment shows that the words “President of the North Missouri Railroad Company,” attached to his name, are not a description of the person of Isaac H. Sturgeon. (Ang. & Ames on Corp. 159, 2d ed).

III. The assignment was good as a parol contract. (Gen. Stat. 1865, § 6, p. 327; 1 Ad. & El. 600.)

T. T. Gantt, for defendant in error.

It will be seen that the main point in this cause is the legal sufficiency of the attempt made by Sturgeon to assign the claim and right of action of the North Missouri Railroad Company against Johnson, Abell, Moberly, and Cunningham, to the plaintiff.

I. The paper produced does not profess to be a transfer of the right and cause of action held by the North Missouri Railroad Company against these parties. The paper says “ we assign,” etc., and is signed by Isaac H. Sturgeon, and witnessed by G. W. Blood. If it had been “ I assign,” etc., and was signed and witnessed in the same manner, it would be not more unequivocal. The name of the North Missouri Railroad Company does not occur in the body of the instrument, nor is there any suggestion that the claims and property of that corporation are being transferred.

II. There is a total want of all evidence to show any authority on the part of Mr. Sturgeon to execute the paper for the North Missouri Railroad Company. Such authority could only be conferred by the corporate act of the company. The officers and agents constituted by its charter must have authorized Mr. Sturgeon to sign this transfer, or his attempt to execute it is a nullity No attempt is made to show this authority.

There are many things in general deserving of attention when a corporation conveys land by deed. First, there must be a consent on the part of the corporate authorities (it being supposed that the corporation possesses the power of alienation, and needs no enabling act for that end) to convey the land, on certain terms and considerations. Second, this consent being gained, there must be a formal act by which it shall be carried into effect. The ceremonies necessary to this formal act are prescribed by § 18, p. 329; Gen. Stat., 1865. This is all. Does the plaintiff in error suppose that this section confers upon the president and secretary an unlimited power of alienating all the land of any corporation? If so, why was a power of sale thought necessary in every charter granted to a municipal corporation possessing a common?

The case of Smith v. Alexander (31 Mo. 193) was one in which a person who signed a note was permitted to show, by way of defense to an action on it, that he signed it for a railroad deed, in acknowledgment of a debt due by the railroad, and that the signature by him was only in his representative character as treasurer, and was known to be such by the holder and payee. It is not perceived that any principle which plaintiff in error is concerned in advocating was established by that case.

In the case of the Mechanics' Bank v. Bank of Columbia (5 Wheat, 336), all that was decided was that “it is by no means true that the acts of agents derive their validity from professing, on their face, to be done in the exercise of their agency. In respect of a general agent, the liability of a principal depends upon, first, whether the act was done in the exercise, and second, within the limits, of the power delegated”--p. 337.

The president of the North Missouri Railroad Company had no power, under the charter of the company, or by virtue of the general law on the subject of corporations, to sell or assign any rights of the company, or any property to it belonging. Such authority could only be conferred by the directory, acting under its charter. It was not pretended that there was any such action on the part of the directory. The act was not within the power of the president as general agent of the company. (See the Charter, p. 483 et seq.; Sess. Acts, 1850-1851, § 5.) “A special agency properly exists when there is a delegation of authority to do a simple act; a general agency properly exists when there is a delegation to do all acts connected with a particular trade, business, or employment.” It is a familiar principle that the powers of a general agent are literally those of a special agent strictly construed. (Story on Ag. § 126.) But in the case at bar there is no agency at all, either general or special--no power to assign or convey any property or rights belonging to the North Missouri Railroad Company, and no such assignment was made.

WAGNER, Judge, delivered the opinion of the court.

The petition in this cause set forth that the North Missouri Railroad Company, having agreed to purchase all the assets of the Chariton and Randolph Railroad Company, and being thereto authorized by an act of the General Assembly of Missouri, agreed to pay as a consideration therefor so much of the debts of the said Chariton and Randolph Railroad Company as would not exceed the sum of $25,000, and appointed, in concert with said Chariton and Randolph Railroad Company, a committee, of which Johnson, the defendant, was one, to audit the demands of the creditors of the said Chariton and Randolph Railroad Company; that one Abell, another of the committee, combining with the defendant Johnson and the rest, audited and allowed in favor of said Abell, fraudulently, a sum of twenty-four hundred dollars, which was not in fact due to the said Abell, and that the North Missouri Railroad Company, after paying this demand to the said Abell, assigned to the plaintiff its right to recover it back from the said Abell, Johnson, and the rest of the committee. The action was brought against all the committee, but only Johnson was served with process, and the answer was put in by him alone.

The defendant answered, denying the fraud and combination charged, and denying the assignment of the claim of the North Missouri Railroad Company ...