Robinson v. Walton

• Decision Date: 31 October 1874
• Parties: SARAH N. ROBINSON, et al., Respondents, v. JOSEPH H. WALTON, Appellant.
• Court: Missouri Supreme Court

58 Mo. 380

SARAH N. ROBINSON, et al., Respondents,

v.JOSEPH H. WALTON, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Washington Circuit Court.

G. I. Van Allen, for Appellant

Reynolds & Relfe, for Respondents.

NAPTON, Judge, delivered the opinion of the court.

This suit is upon a guarantee of this note “Potosi, Mo., December 2, 1868. On or before the 14th day of July, 1869, we promise to pay to the order of Sarah N. Robinson, the sum of $1,464.44 negotiable and payable without defalcation or discount, and to bear interest at the rate of ten per cent. per annum from the 14th day of July, next, for value received. W. A. Mathews, D. E Perryman.” Across the back of the note, appears the following: “Sarah N. Robinson, P. M. Robinson, the undersigned, for value received, hereby guarantee the payment of the within note, on or before Jan'y 31, 1870. Joseph H. Walton, by Frank Harris. Frank Harris.” And the real controversy in this case is whether Frank Harris was authorized to sign the guarantee above recited. To determine this, it will be necessary to state the history of the transaction and of the trial.

A deed of trust to secure this note of Mathews and Perryman, dated July, 1869, was given, and of its priority over executions levied subsequently there could be no question.

Walton and Frank Harris had bought this land under such executions, and their title was of course subject to the deed of trust to Robinson and wife, and they were anxious to get rid of this lien, and to do so, proposed to Robinson to buy this note.

The proposal of Walton was at first to pay for it with a draft at ten days, which he expected to procure from his brother, and Robinson was instructed to go to Irondale, (where he lived) and procure his wife's signature, which he did. But Walton did not succeed in getting the requisite funds or the proposed draft, and he and Harris therefore wanted further time, which Robinson finally agreed to. After several fruitless negotiations on this subject, it was finally agreed between all three, to close the trade in Potosi on a day named, at Harris' store where Harris and Walton were to meet Robinson. Walton failed to be at Potosi at the designated time, and Harris and Robinson met, and Harris signed Walton's name to the guarantee, which Walton says was without authority, but Harris says was not.

Upon this point of fact there was of course conflicting testimony given by Harris, Walton and Robinson, but as the jury passed upon this, under instructions, the only question for our consideration is the propriety of the court's instructions and the admissibility of certain statements of Harris to Robinson, made in the absence of Walton.

All the evidence in relation to Harris' claim of agency, testified to by Robinson, was excluded by the court, but Harris himself testified on this point.

The instructions given were as follows, in substance: 1. If Mathews and Perryman made the note in suit, and Walton and Harris for a valuable consideration guaranteed that said note would be paid before the 1st of January, 1870, the jury will find for plaintiffs the amount nnpaid. 2. An extension of time on a note is a valuable consideration, and if one holds out another man to a third party as his agent, to do certain acts, or states that he has authorized him to do what he thought best in regard to a particular transaction, in his name, and that he would ratify and confirm his acts in the premises, this would constitute the intermediary an agent in the particular transaction, and the third party, who deals with such agent concerning said acts and transactions upon the faith of said declarations of the principal, would be entitled to hold the principal bound by the acts of said agent, done in the line of his said appointment. 3. If then, in this case, the jury find that Robinson extended the time of payment of the note in suit, on consideration that Harris and Walton would guarantee its payment, and that defendant, Walton, told the plaintiff, Robinson, that whatever Harris would do about the note for him (Walton) and Harris would be all right, and that said Harris, acting for himself and as agent for Walton to obtain an extension of the time of payment from said Robinson, guaranteed its payment before January 1st, 1870, and signed the name of Walton and of himself to said guarantee, Walton is bound by said act of Harris, and if the said note was not paid on or before January 1st, 1870, defendant, Walton, is liable for the amount unpaid. 4. If the jury believe that Walton left it to the discretion or judgment of said Harris to do for Walton and himself whatever he, Harris, thought it necessary to do for him (Walton) and Harris, to acquire the interest of Robinson and wife in the note and deed of trust, or to secure an extension of the time of payment of said note, and that in the exercise of that discretion or judgment, and for these...