Pope v. Risley

• Citation: 23 Mo. 185
• Parties: POPE & WEST, Defendants in Error, v. RISLEY AND OTHERS, Plaintiffs in Error.
• Decision Date: 31 March 1856
• Court: United States State Supreme Court of Missouri

23 Mo. 185

POPE & WEST, Defendants in Error,

v.RISLEY AND OTHERS, Plaintiffs in Error.

Supreme Court of Missouri.

March Term, 1856.

1. Where promissory notes, purporting to have been executed by an agent, become the subject of a suit, the ordinary denial of their execution, without the verification by affidavit, required by section 23 of article 4 of the practice act of 1845, (R. C. 1845, p. 819,) will be sufficient to put the plaintiffs to the proof of their execution.

2. An admission made by a member of a partnership, after the retiring from the firm of a former member, can not be used as evidence against such retired partner.

3. A partner retiring from a firm will still be liable for debts contracted by it in favor of persons, who had previously dealt with the firm, and have had no notice of his retirement.

4. This notice must be actual, and be brought home to the parties; or at least credit must have been given under circumstances from which actual notice may have been inferred. Notice in a newspaper, though published in the usual manner, will not, of itself, be sufficient as to those having former dealings with the company.

5. Where promissory notes, purporting to have been executed by an agent, it must appear that the agent had authority, express or implied, to sign the same.

6. The statute of limitations may be relied on as a bar by one of several defendants.

Error to St. Louis Court of Common Pleas.

This was a writ upon certain promissory notes, purporting to have been executed “for the St. Croix Lumber Company,” an association and copartnership of which defendants were alleged to be members. The notes were signed thus: “for the St. Croix Lumber Company. H. S. Wells, sec'y.” It is unnecessary to set forth the evidence introduced on the trial, as the points decided can be readily understood from the opinion of the court.Biddlecome and A. S. Jones, for plaintiffs in error, cited 20 Mo. 530; 4 T. R. 516; 1 Denio, 445.

Krum & Harding, for defendants in error.

SCOTT, Judge, delivered the opinion of the court.

There is nothing in the evidence preserved in the bill of exceptions which shows that there was any express authority in the agent of the St. Croix Lumber Company to sign promissory notes in its name; nor is there any thing showing that the agent was intrusted with the management of any such business as would incidentally confer an authority to execute notes in the name of his constituents; neither was it maintained that, as a matter of law, a mere clerk or secretary had authority to bind his employer by signing notes in his name. Under these circumstances, the plaintiffs relied for proof of authority on the usual course of business of the company and its recognition of the acts of agent in signing notes in its name, in accordance with the rule that, where a clerk is usually intrusted to sign notes, or usually does sign for his master, which are afterwards paid or recognized to be valid, he is presumed to possess a rightful authority to do so in other instances, within the scope of the same business. (Story on Agency, § 55.)

1. The 23d section of art. 4 of the practice act of 1845 is not applicable to notes executed by an agent. The case of Wahrendorff v. Whittaker, (1 Mo. 205,) shows that, under the plea of non-assumpsit in an action on a note executed by an agent, the agency must be proved before the note can be read in evidence, although the truth of the plea is not supported by an affidavit. The notes, therefore, the subject of this suit, purporting to be executed by an...