Taylor v. Sartorious

• Decision Date: 04 February 1908
• Citation: 108 S.W. 1089,130 Mo. App. 23
• Parties: TAYLOR v. SARTORIOUS.
• Court: Missouri Court of Appeals

108 S.W. 1089

130 Mo. App. 23

TAYLOR v. SARTORIOUS.

St. Louis Court of Appeals. Missouri.

February 4, 1908.

Rehearing Denied March 31, 1908.

1. PARTNERSHIP — LIABILITIES AS TO THIRD PERSON—REPRESENTATION OF FIRM BY PARTNER —RESTRICTION OF PARTNER'S AUTHORITY.

The powers of a partner as the agent of the firm may be limited by the firm in the same manner as any other agency may be restricted by the principal, and the restriction binds all who have knowledge of it; and, if one dealing with a partner relies on his express authority to act for the firm, he is confined to the terms thereof as in other kinds of agencies.

2. SAME.

In an action against defendant to recover for property purchased by the duly authorized agent of a firm of which she was a partner, plaintiff having dealt with the agent under a written power to act for the firm, he was bound by the terms thereof, and could not rely on the implied authority of the agent as a partner, and defendant was not liable for the acts of the agent outside of his express authority.

3. PRINCIPAL AND AGENT—LIABILITIES AS TO THIRD PERSONS — APPARENT AUTHORITY OF AGENT.

A principal is responsible for the acts of an agent within his apparent authority only when the principal himself has clothed the agent with the appearance of authority, and not when the agent's own conduct has created the apparent authority.

4. SAME.

The fact that blank spaces are left on a written power of attorney does not render the principal liable if the spaces are subsequently fraudulently filled in by the agent so as to extend his authority; the rule being different from that applying to negotiable instruments containing blank spaces in which are inserted things customarily omitted, as the rate of interest.

5. ALTERATION OF INSTRUMENTS—EFFECT.

As a general rule the alteration of a written instrument after delivery vitiates it.

6. PRINCIPAL AND AGENT—POWER OF ATTORNEY — ALTERATION BY AGENT—EFFECT.

Where defendant and others signed a power of attorney authorizing one of the signers to perform all necessary acts pending the incorporation of a proposed company, the power providing that any acts so performed were thereby ratified by the parties thereto "subject to the approval of all parties concerned," the fact that the clause requiring the approval of the agent's acts by the parties was attached by a wafer so as to be easily removed, and was in fact removed by the agent, thereby leaving his powers apparently unrestricted, did not render defendant liable for the acts of the agent outside of the original power before the clause was removed; the act of the agent being similar to forgery, which cannot render the principal liable.

7. JUDGMENT—BAR OF CAUSES OF ACTION— JOINT AND SEVERAL CONTRACTORS.

Defendant and others signed a power of attorney authorizing one of the proposed corporators of a company, which the parties contemplated forming, to perform all necessary acts pending incorporation, which they thereby ratified, and in pursuance thereof the agent bought certain property from plaintiff. The proposed corporation not being formed, plaintiff sued the signers of the power, except the present defendant, on their liability as partners for the purchase price of the property purchased by the agent, the principal defense being that a clause of the power requiring the approval of the parties thereto to acts of the agent was detached by him, and hence the purchase of the property by the agent without their approval was unauthorized, and, issue being made thereon, judgment was given for defendants. Held, in an action against defendant as a principal for the price of the property sold the agent under the power, that the judgment in the former suit against the other signers of the power, wherein it was determined that the power contained the words restricting the agent's authority, was a bar to the present action, in which the issue was the same, even though defendant was not a party to the former action, and notwithstanding that Rev. St. 1899, §§ 889, 892 [Ann. St. 1906, pp. 828, 829], make such obligations joint and several.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action v. Joseph Taylor against Emelia Sartorious. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This action was originally instituted before a justice of the peace to recover the price of a leasehold and personal property sold by J. S. Turley and Conrad Bock to the Sorento United Coal Mining Company, alleged to have been a partnership composed of certain individuals, among them the appellant, Mrs. Sartorious. The sale of the property occurred July 17, 1902, and was conducted in behalf of the Sorento Company by Jean B. Texier, secretary and treasurer of the firm. The original defendants in the suit were Emelia Sartorious, Albert and Adolph Kahl, E. P. Gracey, and Louis Hauser. No service was obtained upon any defendant except the appellant. The case went to the circuit court on appeal, and a trial there resulted in a judgment against her for $500, from which the present appeal was prosecuted to this court.

The defendants owned land in the state of Illinois on which there was believed to be a deposit of coal. They, in connection with Texier, arranged to incorporate a company, to be known as the "Sorento United Coal Mining Company," to mine coal on the land, and to buy and sell coal in the city of St. Louis. Proceedings to incorporate were set on foot, but before they were completed the defendants abandoned the enterprise. Meanwhile an office had been opened in the Mermod-Jaccard Building in the city of St. Louis, and various advertisements and prospectuses issued in which all the projectors of the intended corporation participated. Texier was appointed manager or agent pending the incorporating of the company, and given authority to do such acts and perform such business as was necessary for the benefit of the proposed corporation. This authority was conferred by a written document, the terms of which are in dispute, and the issue as to what the terms were is the principal one in the case. Pursuant to the powers given to him as agent Texier looked about the city of St. Louis for a coalyard and office where business might be conducted. Turley and Bock were the owners of a leasehold of premises suitable for that purpose, on which there were a building, stable, and icehouse. They also owned an ice wagon, a secondhand storm buggy and harness, and boxes for coal, all situate on the leasehold promises. They were willing to sell the unexpired term, but only provided they sold the building and articles mentioned. Texier purchased the term and properties on credit for the company for $500, taking a written bill of sale to the Sorento Company. This transaction occurred July 17, 1902. The complaint alleges that the appellant and the other parties originally sued as codefendants with appellant "by their authorized agent" signed the bill of sale, in which it was agreed they should pay $500 for the property. Turley and Bock afterwards assigned their interest in the contract—that is, their demand for the price of the property—to respondent, who instituted this action to recover the price.

One point made is that the writing appointing Texier agent did not authorize him to purchase the icehouse or ice wagon; but the testimony goes to show these properties could be used in connection with the coal business; that, as said, the leasehold could not be purchased without buying them; and that they could be readily sold for what they cost. There is much testimony tending to prove appellant and the other projectors of the company knew of the pending purchase of the property in controversy, also of other arrangements made by Texier as agent of the company, and that everything was done with their knowledge; but as to their knowledge there is a discrepancy in the evidence. Turley and Bock swore that in negotiating for the purchase Texier told them of the intention of himself and his associates to incorporate a company; that the formation of the company was in a preliminary stage, but meanwhile the projectors of it desired to buy and acquire immediate possession of coalyards and other accessories of the contemplated business. After the present action was instituted before the justice of the peace and dismissed as to all the defendants but Mrs. Sartorious, because the others could not be served with process, another action on the same demand was instituted by plaintiff before a justice of the peace against the other defendants, to wit, Albert and Adolph Kahl, E. P. Gracey, and Louise Hauser. The trial of the latter action resulted in a judgment for those defendants. This occurred after the present action had been appealed to the circuit court, and on the trial of it in the latter court appellant's counsel offered in evidence the record of the proceedings and judgment in the case against the Kahls and others in proof of the defense that the issue in this case had been finally adjudicated and determined against the plaintiff, and hence that the judgment in the case against the Kahls and others was a bar to the present case. The offer of the record was accompanied by a tender of evidence to prove the issues involved herein regarding the terms of the written appointment of Texier to act as agent were tried and adjudicated in the other action. The principal issue was as to whether or not the writing under which Texier purported to act in making the purchase from Turley and Bock was changed after it was signed by Mrs. Sartorious and the other projectors of the Sorento Company, so as to distort its meaning as originally executed. It should be stated that this writing was exhibited to Turley and Bock by Texier as his authority for buying the property in controversy in the name of the Sorento Company. The document is as follows, the words in dispute being shown parenthetically:

"This agreement, made and entered into...