State v. Parke-Davis & Co.
| Decision Date | 14 June 1915 |
| Docket Number | No. 11592.,11592. |
| Citation | 177 S.W. 1070,191 Mo. App. 219 |
| Parties | STATE ex rel. SPELLMAN v. PARKE-DAVIS & CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.
Action by the State, on the relation of Clarence I. Spellman, administrator, against Parke-Davis & Co. From a judgment for plaintiff, defendant appeals. Affirmed.
Charles M. Woodruff, of Detroit, Mich., James Cleary, of Battle Creek, Mich., and Johnson & Lucas, of Kansas City, for appellant. Joseph S. Rust and E. Wright Taylor, both of Kansas City, for respondent.
This is a suit upon an attachment bond. The defendant denies all liability thereon upon the ground that execution thereof was never authorized nor thereafter ratified. Upon a trial in the circuit court the defendant's demurrer to the evidence was overruled, and judgment was rendered in favor of plaintiff in the sum of $745, from which the defendant has appealed. To clearly understand the case it is necessary to make a full statement of the facts out of which it grew.
The defendant is now, and was at the times hereinafter mentioned, a Michigan corporation with a branch house in Kansas City, Mo. In the course of the business of this branch house it had, at some time prior to May 29, 1905, acquired a rote of Fred Mullett. J. P. Reymond was the general manager of said branch house, and he authorized a suit on said note to be brought by original attachment against Mullett, the latter being a resident of California. The attachment suit was filed on the above-named date, having for its grounds the nonresidence of Mullett. No summons was served upon him, but jurisdiction was obtained by levying the writ of attachment on certain property of Mullett's and garnisheeing certain of his debtors. The affidavit verifying the copy of the note attached to the petition was made by Reymond, as "manager of Parke-Davis & Co., the plaintiff named in the petition attached hereto." He also signed and swore to the affidavit for the attachment, wherein he stated that "defendant is not a resident of the state of Missouri." The attachment bond was in regular form, purporting to be from "Parke-Davis & Co., a corporation, and J. P. Reymond, as security," and was signed thus:
It was approved by the circuit clerk on the same day.
Thereafter a trial of the suit was had, resulting in a judgment for the defendant. Thereupon the local Kansas City attorneys, who had brought the suit for Parke-Davis & Co., at the request of Reymond, sought permission from said company at the home office to appeal the case. Parka-Davis & Co., referred the matter to their general counsel, who authorized the case to be appealed to the Supreme Court of Missouri. This was done and the case was duly presented to that court, where the judgment of the circuit court was, after several years, finally affirmed. The affidavit for appeal was made by J. P. Reymonds, as "agent at Kansas City of Parke-Davis & Co., plaintiff in the above-entitled action." The bond for appeal was made with Parke-Davis & Co. as principal, with J. P. Reymond and Chas. F. Ayre as sureties, and the bond was signed "Parke-Davis & Co., by J. P. Reymond, Manager," and then by both J. P. Reymond and Chas. P. Ayre individually. After the affirmance of the attachment suit Mullett died, and relator, Spellman, was appointed his administrator, and thereupon the present suit on the bond was instituted. Reymond, defendant's local manager, who executed the bond, also died.
The object of the suit is to hold Parke-Davis & Co. liable as principal on the bond. Plaintiff does not claim that Parke-Davis & Co. authorized Reymond to execute the bond, but that after it was executed the defendant corporation ratified his execution thereof by litigating the case in which the bond was given and by carrying the case on appeal to the Supreme Court and presenting it there.
The theory of the defense is that the instrument is not under the corporate seal of the defendant; that, as to corporations, no instrument executed by them can be considered a bond, unless it is so made as to be strictly within the old common-law definition of a bond, namely, an obligation in writing under seal; that it is a rule of the common law that authority to execute an instrument under seal can be conferred only by a writing under seal, and therefore defendant's agent, Reymond, had no authority to execute the instrument sued on, and, as he was never authorized to execute said instrument, nothing done on the part of defendant can ever amount to a ratification, unless it is also evidenced in writing and under seal.
There is no doubt but that, under the common law, an instrument in writing is not a bond, unless it is under seal. State ex rel. v. Clay County, 46 Mo. 231; State ex rel. v. Chamberlain, 54 Mo. 338; State ex rel. v. Thompson, 49 Mo. 188.
It is also fundamental that, under the law of principal and agent, authority to an agent to execute an instrument required by law to be under seal must be shown and conferred by an instrument executed with the same formality; that is, it must also be under seal, at least, where the agent acts outside of the presence of the principal. Shuetze v. Bailey, 40 Mo. 69; St. Louis Dairy Co. v. Sauer, 16 Mo. App. 1; 31 Cyc. 1231.
It is, without doubt, also essential, in the law of principal and agent, that if the agent's authority is required to be in writing under seal, then ratification cannot be established by anything less than a writing under seal, provided, of course, there is no element of equitable estoppel involved. Hawkins v. McGroarty, 110 Mo. 546, 19 S. W. 830; Borel v. Rollins. 30 Cal. 408; Borderre v. Den, 106 Cal. 594, 39 Pac. 946; Riggan v. Crain, 86 Ky. 249, 5 S. W. 561; Judd v. Arnold, 31 Minn. 430, 18 N. W. 151; Overman v. Atkinson, 102 Ga. 750, 29 S. E. 758; Ingraham v. Edwards, 64 Ill. 526.
So that the question of defendant's liability in this case would seem to depend upon whether or not the abolishment, by our statutes, of the common-law distinctions between sealed and unsealed instruments, extends to corporate judicial bonds, and whether or not our law still requires such bonds of a corporation to be under seal. The bond in question was executed under private seals affixed by the manager agent, Reymond, which would doubtless be sufficient, so far as the instrument itself is concerned, if the agent had authority under seal to execute it; because, in that event, since he was not the keeper of the corporate seal, he would perhaps be entitled to use the seal he had, namely, his private seal. On the other hand, if the bond is not required to be under seal, the mere fact that private seals were affixed does not compel it to be treated as an "instrument under seal"; since section 2773, R. S. Mo. 1909, says:
"The addition of a private seal to any such instrument shall not in any manner affect its force, validity or character, or in any way change the construction thereof."
Hence the question whether defendant's ratification of the bond in controversy can be shown by anything less than a writing under seal is not affected by the fact that private seals were affixed to it at its execution. And this question depends upon whether or not the old common-law distinctions between sealed and unsealed instruments Must be retained in dealing with corporate judicial bonds; that is, whether or not such an instrument, in order to be a bond, must come within the common-law definition thereof?
The author then goes on to say that, while corporations may yet appoint their agents or make their contracts with the same formalities demanded by the common law, they are no more compelled to do so than are individuals, and that, like individuals, they are subject to the rules of law, and therefore their contracts as to matters which the statute of fraud requires to be in writing must be in writing, but, as the statute of frauds does not require contracts within its purview to be under seal, the contracts of corporations, even for the sale of lands, do not have to be under seal.
The above section of Angell & Ames is referred to, quoted from, and applied in Campbell v. Pope, 96 Mo. 468, loc. cit. 472, 10 S. W. 187. In that case the validity of an appeal bond of a corporation, the Pope Iron & Metal Company, was in question; the defendants denying that it was properly executed. The bond in that case was executed in exactly the same way as the one at bar, except that it was done by the president of the corporation, while the one before us was by a branch manager. This, however, makes no material...
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