Sauer v. Brinker

• Decision Date: 30 April 1883
• Citation: 77 Mo. 289
• Parties: SAUER v. BRINKER, Appellant.
• Court: Missouri Supreme Court

77 Mo. 289

SAUER

v.BRINKER, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Crews & Booth for appellant.

John R. Martin for respondent.

MARTIN, C.

In this action the plaintiff sued for the recovery of $105.87 paid to the use of defendant.

It is alleged in the petition that one Henry Bertelsman was the agent of defendant and had sole charge of a furniture and undertaking business, carried on by defendant in the town of Washington; that said Bertelsman executed his promissory note of the 12th of October, 1875, for the sum of $175, payable in forty-five days from date, to his own order; that said Bertelsman indorsed the same, and after procuring the indorsement of one Hanneken. presented the same for indorsement to plaintiff, and as agent of defendant represented that he desired to procure the indorsement of plaintiff on the note, to the end that the same might be negotiated at bank for the purposes of defendant's business carried on as aforesaid; that upon the faith of said representations, and upon the credit of defendant, the plaintiff indorsed said note; that the same was negotiated for the purposes of defendant's business; that these acts of said Bertelsman, as his agent, were ratified by defendant; that when said note became due and payable, it was dishonored and protested for non-payment; that the holder of it instituted suit thereon against the plaintiff and the other indorser, and recovered judgment against both; and that the plaintiff was compelled to pay the sum sued for, as his share of the liability.

The answer contains a specific denial of all the allegations of the petition. It then goes on to admit that some time prior to October, 1875, the defendant verbally authorized said Bertelsman to sell and close out a remnant of stock of furniture belonging to defendant, and for that purpose permitted him to use defendant's name to purchase certain articles to fill up and close the business without loss, but with the express understanding that he should not be required to pay for additions made to said stock, and that the same should be paid for by the said Bertelsman himself; and that this arrangement constituted the only arrangement he ever had with Bertelsman in connection with the furniture business.

The case was tried by the court without the intervention of a jury. The only controversy of fact in the case, relates to the agency of Bertelsman in making the note, procuring the indorsement and obtaining the money; whether he did this for himself or for the defendant. It is unnecessary to review the evidence, for there is abundance of it on both sides of the controversy, enough at least to justify instructions or declarations of law on all points upon which they were given. The court rendered a judgment for the plaintiff in the sum claimed, and the only matter to be determined on this appeal is, whether the action of the court in respect to the admission of oral evidence and the giving of the instructions based upon it, is proper.

Two instructions were given at the instance of plaintiff to the effect: 1st, That if the plaintiff indorsed the note by reason of representations made to him by Bertelsman, to the effect that said indorsement was to be used by him as agent of defendant, for the purposes of defendant's business, of which Bertelsman had charge, and that at this time said Bertelsman was the authorized agent of defendant, and that borrowing money for the business was within the scope of the authority of said Bertelsman as agent, and that as such agent Bertelsman was carrying on, for defendant, the furniture business, or was using defendant's name in said business by defendant's permission, and that plaintiff was compelled to pay the note at suit of the holder, then the plaintiff was entitled to recover. 2nd, If...