Robinson v. Jarvis

• Decision Date: 11 April 1887
• Parties: JOHN ROBINSON ET AL., Appellants, v. SAMUEL M. JARVIS ET AL., Respondents.
• Court: Kansas Court of Appeals

25 Mo.App. 421

JOHN ROBINSON ET AL., Appellants, v. SAMUEL M. JARVIS ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Mercer Circuit Court, HON. G. D. BURGESS, Judge.

Affirmed.

Statement of case by the court.

The defendants, Samuel M. Jarvis and Rolan R. Conklin, were partners under the firm name of Jarvis, Conklin & Co., doing business at Kansas City, as loan brokers. One Webster Ballew was acting as the defendants' agent in Mercer county this state, soliciting loans for them; the plaintiffs are husband and wife; John Robinson, solicited by Ballew, made application to the defendants for a loan of five hundred dollars; Ballew sent the application to the defendants; the application, after an inspection of the real estate offered by Robinson as security had been made by another agent of defendants', employed for that particular purpose, was approved; the note, and other papers, were all drawn by defendants, and sent to Ballew for execution by the plaintiffs; the papers were all duly executed by the plaintiffs; among other papers thus drawn and made out by defendants, ready for execution by the plaintiffs, was the following:

" To be signed by John Robinson and wife.

KANSAS CITY, Mo., February 1, 1883.

Pay to Webb Ballew, or order, the full amount due us on the loan negotiated by you for us, with A. W. Berkey, and this shall be your receipt therefor.

To Jarvis, Conklin & Co.,

Kansas City, Mo.

NOTE--This order is to be signed by the parties borrowing, at the time of executing the papers, and must be sent to us with note and abstract, the abstract showing the mortgage filed for record. Drafts or currency will be remitted by return mail, or express, as requested."

This paper was duly signed by the plaintiffs, in the space indicated for their signatures; Ballew presented said paper with the others, for the signatures of the plaintiffs; John Robinson testified, in reference to the execution of said paper, as follows:

" I and my wife, Elizabeth, came down here to Princeton to attend to the business, and we went to Mr. Ballew's office, and we signed a good many papers; I did not have my spectacles with me, and I could not see to read them; I tried to read some of them, but could not make it out, and I gave it up; we signed just what Mr. Ballew told us to sign, to fix up the papers to get the loan; I did not, knowingly, sign any order for Jarvis, Conklin & Company to pay the money on my loan to Webb Ballew, for me; if I signed any order of that kind, I did not know what it was; I left the papers with Ballew, and he said the money would soon come on; none of the papers were read to me, nor did I hear them read."

There was no evidence tending to show any fraud or misrepresentations used by the defendants, or any of their agents, to induce the plaintiffs to sign the said paper; upon the said paper being presented, by Ballew, to the defendants they paid to him the full amount due to plaintiffs on the loan; this action was tried by both parties as an action for the recovery, by plaintiffs from the defendants, of the amount due to the plaintiffs on such loan; it was admitted by counsel for plaintiffs, on the trial, that the defendants had made the payment above stated to Ballew; the court instructed the jury that they must find for the defendants. The plaintiffs have appealed to this court.

H. J. ALLEY and HYDE & ORTON, for the appellants.

I. The defendants are responsible for the fraud and misfeasance of Ballew, which is to be imputed to them, whose agent he was. The fraud and misfeasance of Ballew was done within the scope of his employment, whether we consider the loss resulting from fraudulently procuring plaintiffs' signatures to the order, or from his embezzlement of the money entrusted to him by defendants, to transmit to plaintiffs. Jewet v. Carter, 13 Mass. 337; Story on Agency [6 Ed.] sects. 126-7; Harriman v. Stowe, 57 Mo. 93.

II. The agency of Ballew may be shown by the acts of the parties. In this case he was the recognized agent of the defendants. Security Co. v. Addison, 15 Neb. 335.

III. It was not competent for Ballew to change the position he occupied to the parties, without making such change known to the parties. Kausal v. Ins. Co., 31 Minn. 17; Ins. Co. v. Myers, 55 Miss. 479; Gau v. Ins. Co., 43 Wis 108; Sullivan v. Ins. Co. (S. C. Kansas), Am. & Eng. Corp. Cas., May, 1886; 89 Pa.St. 464; Boether v. Ins. Co., 47 Iowa 255.

IV. The duty of defendants did not terminate with procuring the order. Ballew was still their agent to transmit the money to plaintiffs. 55 Miss. 479.

V. The court should have given the instruction, as prayed by plaintiffs, and refused that of defendants. The error complained of is in the ruling of the court in giving to the jury the instructions prayed by defendants, and refusing plaintiffs'.

VI. The acts of Ballew bind the defendants, notwithstanding private instructions, unless such instructions are made known to plaintiffs. Ins. Co. v. Brabst, 18 Neb. 528. And such liability will extend to the apparent authority conferred on the agent. Webster v. Wray, 17 Neb. 580.

CRITTENDEN, MCDOUGAL & STILES, for the respondents.

I. The plaintiffs having failed to controvert in their reply the allegation of the answer that defendants paid the money to Ballew upon the written order of plaintiffs, that allegation must be taken as true (Rev. Stat., sect. 3545), and the answer having further charged that plaintiffs executed the order, its execution was properly adjudged confessed because not denied under oath. Rev. Stat., sect. 3653.

II. No fraudulent representations, even upon the part of Ballew, were shown; and the mere fact that plaintiffs did not " knowingly " sign the order does not excuse them. It was their duty to know what they were signing. 2 Whart. Evid. sect. 1028, and cas. cit. notes.

III. Having directed the payment to Ballew, plaintiffs made him their agent to receive the money. That he did not pay it to his principals was no fault of defendants, and the case presented by the record calls for the application of the trite maxim, that " where one of two innocent persons must suffer by the wrong of another, the one who enables such other to commit the wrong must bear the consequences." Spraights v. Hawley, 39 N.Y. 441, 448; Whittemore v. Obear, 58 Mo. 280, 286.

HALL J.

The execution by the plaintiffs of the written order addressed to the defendants, directing them to pay the amount due to plaintiffs to Ballew, stood admitted under the pleadings. The answer alleged the execution of said order by the plaintiffs the reply was not under oath. Rev. Stat., sect. 3653; Rothschild v....