Stewart v. Brinson-Waggoner Grain Company

• Decision Date: 06 February 1912
• Citation: 143 S.W. 868,163 Mo.App. 473
• Parties: A. C. STEWART et al., Trustees, Appellants, v. BRINSON-WAGGONER GRAIN COMPANY, Respondent
• Court: Missouri Court of Appeals

143 S.W. 868

163 Mo.App. 473

A. C. STEWART et al., Trustees, Appellants, v. BRINSON-WAGGONER GRAIN COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

February 6, 1912

Argued and Submitted January 9, 1912.

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

AFFIRMED.

Judgment affirmed.

Eliot Chaplin, Blayney & Bedal for appellants.

(1) The condition of the account between Bird and the Export Company was an irrelevant issue. Even though the Export Company was indebted to Bird (which is by no means conceded) this did not authorize him to appropriate credits or funds of his principal in liquidation of his account. Benny v Pegram, 18 Mo. 191. (2) Though an agent can testify as to the extent of his authority he must state the facts concerning the agency and not state a mere conclusion that he had the authority to do a particular act. Griswold v. Haas, 145 Mo.App. 578; 31 Cyc. 1652; 17 Cyc. 219. (3) Whether the Merchants' Exchange did or did not have rules for enforcing contracts made with reference to future deals in grain was an immaterial issue, and evidence to this effect should not have been submitted. (4) The court excluded a question relating to the transfer of the balance of Bird's account to the Cottingham Grain Company, and defendant's failure to hold this balance for the benefit of the Export Company on the theory that this balance did not belong to the Export Company, and yet in its opinion the court found that the Bird and the Export Company's accounts were one and the same. (5) The court erred in failing to mark the peremptory declarations of law offered by plaintiff at the close of the entire case and the third declaration of law offered by plaintiff either "given" or "refused." R. S. 1909, sec. 1987; McQuillin, Instructions to Juries in Civil Cases, par. 135; McQuillin's, Instructions to Juries in Civil Cases, par. 8. (6) Failing to mark plaintiff's third declaration of law and the peremptory declarations offered at the close of the case, was equivalent to refusing the declarations. Calef v. Thomas, 81 Ill. 478; 38 Cyc. 1770; 38 Cyc. 1773. (7) It is the duty of a court where a case is tried without a jury and a request is made therefor by one of the parties to the case to find the facts, separately from the conclusions of law. R. S. 1909, sec. 1972; Settle v. Ins. Co., 131 S.W. 136; Hammel v. Talbot, 72 Mo.App. 22; Bailey v. Emerson, 87 Mo.App. 225. (8) It is not proper for the court to state its findings of facts and conclusions of law in its opinion. 38 Cyc. 1960. (9) The findings of fact and conclusions of law filed by the court were indefinite and not sufficient to indicate on what facts the court based its conclusions of law, and were not such a finding of facts and statement of conclusions of law as was contemplated by the statutes. Hammel v. Talbot, 72 Mo.App. 22; Bailey v. Emerson, 87 Mo.App. 225; Grain Co. v. Becker, 76 Mo.App. 375; 38 Cyc. 1964. (10) Though there should have been only one judgment in the case, still the court should have made a statement of its finding the issues in favor of the defendant in regard to every count of the petition and not simply have made one general finding in favor of the defendant. (11) It is not within the implied authority of a general manager as such to issue checks in his own favor, or to direct credits belonging to his principal to be applied in payment of his individual account. Bank v. Orthwein, 160 Mo.App. 369; Lee v. Smith, 84 Mo. 304. (12) An agent has no implied power to use the funds of his principal in payment of his individual indebtedness. Bank v. Orthwein, 160 Mo.App. 369; Charcoal Co. v. Lewis, 154 Mo.App. 548; Lee v. Smith, 84 Mo. 304; Kitchens v. Teasdale Co., 105 Mo.App. 463; Butler v. Dorman, 68 Mo. 298; Lamson v. Beard, 94 F. 30; Anderson v. Kisson, 35 F. 699; Benny v. Rhodes, 18 Mo. 147; Wheeler & Wilson Co. v. Given, 65 Mo. 89; Mfg. Co. v. Hilbert, 24 Mo.App. 338; Benny v. Pegram, 18 Mo. 191; Greenwood v. Burns, 50 Mo. 52. (13) The authority of an agent to apply funds of his principal in payment of the agent's debts must be an authority to do the particular act under the circumstances. Bank v. Orthwein, 160 Mo.App. 369; Ins. Co. v. Ins. Co., 8 Mo.App. 408. (14) Any neglect on the part of the directors or other officers of the Export Company to find out about the application which Bird had made of the Export Company's credits with the defendant would not constitute a ratification of Bird's action or an estoppel. Bank v. Orthwein, 160 Mo.App. 369; Kitchens v. Teasdale Co., 105 Mo.App. 463; Lee v. Smith, 84 Mo. 304. (15) One knowingly receiving the funds of a principal from an agent in payment of the agent's individual indebtedness to him does so at his peril. Bank v. Orthwein, 160 Mo.App. 369; Lee v. Smith, 84 Mo. 304; Kitchens v. Teasdale Co., 105 Mo.App. 463; Friedman & Sons v. Kelly, 126 Mo.App. 279; St. Louis Co. v. Hilbert, 24 Mo.App. 338; Lamson v. Beard, 94 F. 30; Anderson v. Kisson, 35 F. 699. (16) The checks bore proof on their face that they were drawn on the funds of the Export Company and the defendant knew that the proceeds were to be used in what appeared on its face to be an individual transaction of Bird's; and therefore defendant knew that in the absence of a special authority in Bird the checks were unauthorized, and that it would be liable to the Export Company for their proceeds. Bank v. Orthwein, 160 Mo.App. 369; Charcoal Co. v. Lewis, 154 Mo.App. 548; Lee v. Smith, 84 Mo. 304; Kitchens v. Teasdale Co., 105 Mo.App. 463; Lamson v. Beard, 94 F. 30; Anderson v. Kisson, 35 F. 699. (17) One accepting the funds of a principal in payment of an agent's individual debt has the burden of proving the right of the agent to so apply the funds. Banking Co. v. Com. Co., 195 Mo. 262; Bank v. Orthwein, 160 Mo.App. 369; Butler v. Dorman, 68 Mo. 298; Chambers v. Short, 79 Mo. 204; Keown v. Vogel, 25 Mo.App. 35; Johnson v. Hurley, 115 Mo. 513; Knoche v. Whiteman, 86 Mo.App. 568; Hefferman v. Boteler, 87 Mo.App. 316; Nicholson v. Pease, 71 Vt. 534; Furn. Co. v. Hudspeth, 91 P. 843; Larpenteur v. Williams, 81 N.W. 625. (18) Where an agent acts for his own benefit in a transaction, knowledge coming to him in such a transaction uncommunicated to his principal does not bind the principal. Bank v. Lovitt, 114 Mo. 519; Bank v. Tinsley, 11 Mo.App. 498; Lamson v. Beard, 94 F. 30. (19) The declarations of law offered by the plaintiffs which were refused by the court contained correct statements of the law based on evidence in the case, which were not covered by other declarations given by the court. The failure to give these declarations was prejudicial error. (20) There is no evidence whatever that the Export Company's and Bird's accounts with the defendant were one and the same, but on the contrary there is most positive evidence that the items of Bird's account were those of his individual transaction and the items of the Export Company's account, those of his transactions as agent of that company.

Thos. B. Harvey and Thos. J. Rowe for respondent.

(1) A judgment will not be reversed for purely technical errors or irregularities from which appellant has sustained no injury. R. S. 1909, sec. 2082; Burns v. Liberty, 131 Mo. 372; Mitchill v. Bradstreet Co., 116 Mo. 226; Valle v. Pickton, 91 Mo. 207; Gordon v. Eans, 97 Mo. 587. (2) This court will not review the rulings of the trial court which were adverse to the respondent; and will only consider objections and exceptions to the rulings of the trial court made over the objections of appellant to which exception has been properly saved. The errors which are reviewable on appeal must be against the appellant. R. S. 1909, sec. 2082; Settle v. Ins. Assn., 131 S.W. 136. (3) The giving of either an erroneous instruction or the refusal of a correct instruction when the case is tried by the court, will not constitute a reversible error unless the appellant can clearly show that the action of the trial court was prejudicial error against the appellant. (4) The judgment herein being for the right party the judgment will not be reversed except for error prejudicial to the appellant and the judgment will not be disturbed unless it is evident that injustice has been done. (5) If all the sales and purchases either for cash or for future delivery which S. M. Bird made with the respondent were in law the sales or purchases of the Export Company, then the appellant cannot recover upon any count in the petition. The trial court found upon substantial evidence that they were; therefore that question cannot be reviewed on appeal. Story on Agency, sections 160a-161; Briggs v. Menchon, 56 Mo. 466; Nichol v. Kern, 32 Mo.App. 6. (6) An agent, without the assent of his principal, will not be allowed to engage in the same business as the one in which he is acting as agent. S. M. Bird, the vice-president of the Export Company and the sole manager of its business in St. Louis by and through whom all its business was conducted, could not engage in the business of buying and selling grain for either cash or future delivery for himself, because that was the very business he was employed to engage in for his principal, the Export Company. Am. and Eng. Ency. Law, Agency, p. 1082, notes 3, 4 and 5; Dennison v. Aldrich, 114 Mo.App. 700; Holt v. Railroad, 174 Mo. 534.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

This is an action by appellants, trustees of the Missouri Valley Grain & Export Company, hereafter referred to as the Export Company. The amended petition upon which the case was tried contains six counts, the first for $ 724.99, the second for $ 90.63, both of these alleged to have been balances due by defendant to the Export Company in September, 1904, upon a cash...