Thudium v. C.S. Savings & L. Assn.
| Decision Date | 25 September 1930 |
| Docket Number | No. 4791.,4791. |
| Parties | JEAN W. THUDIUM, RESPONDENT, v. CENTRAL STATES SAVINGS & LOAN ASSOCIATION, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Jasper County Circuit Court. — Hon. Grant Emerson, Judge.
AFFIRMED.
Borders, Borders & Warrick, H.T. Lincoln and John J. Wolfe for appellant.
(1) The burden of proof was upon plaintiff to show that the transaction in question came within the scope of Williams' employment by defendant. The evidence fails to establish Williams' agency in this transaction. Rector v. H.K. Mulford Co. (Mo. App.), 185 S.W. 255, l.c. 256. (2) Plaintiff admits that she knew that she was dealing with an agent in this transaction. She was therefore put upon notice to ascertain the scope and extent of the agent's authority. This she failed to do. Williams being without actual authority, plaintiff cannot recover. Richmond-Guano Co. v. E.I. Dupont, De Nemours & Co., 284 Fed. 803; 2 C.J. 562; 5 Thompson on Corporations (3 Ed.), sec. 4056; Hodkinson v. McNeal Machinery Co., 161 Mo. App. 87; Reinhart Grocery Co. v. Knuckles, 172 Mo. App. 627; Mathes v. Switzer Lumber Co., 173 Mo. App. 239; Texas Company v. Quelquejue, 263 Fed. 491. (3) This transaction being unusual and out of the ordinary course of the agents business, plaintiff was put upon notice to ascertain the actual scope of his authority, and having failed to do so she is bound by his actual authority and cannot rely upon any claim of apparent or implied authority. 2 C.J. 577 et seq.; Pemiscot County Abstract Co. v. Duncan (Mo. App.), 194 S.W. 299; Freedman & Son v. Kelly, 126 Mo. App. 279; In re Selman Heating & Plbg. Co., 203 Fed. 777; Bixler Co. v. Riney (Mo. App.), 7 S.W. (2d) 396; Rector v. H.K. Mulford Co. (Mo. App.), 185 S.W. 255.
Norman A. Cox and Hugh Dabbs for respondent.
(1) During the period in question, Williams, admittedly, was the agent of defendant to transact all of defendant's business with the public within a district embracing four counties. He was a general agent of defendant for the territory covered by his district. 1 Mechem on Agency (2 Ed.), 520, sec. 737; Kissell v. Railroad, 194 Mo. App. l.c. 355; Typewriter Co. v. Realty Co., 165 Mo. App. l.c. 138; Plummer v. Knight, 156 Mo. App. l.c. 335. (2) Under such circumstances, defendant, the principal, is liable for the acts of its admitted agent, to plaintiff, the innocent and injured third party. 1 Mechem on Agency (2 Ed.), 520, sec. 737; Kissell v. Railroad, 194 Mo. App. l.c. 354, 355, 357; Typewriter Co. v. Realty Co., 165 Mo. App. 131, l.c. 139-140, 138; 2 C.J. 564, par. 206. (3) There was nothing in the transaction involved in this case or in plaintiff's course of dealing with Williams as agent of defendant to indicate to plaintiff that Williams might be exceeding his authority in the matter as agent of defendant, so that plaintiff was not put on inquiry as to whether he was exceeding his authority as such agent of defendant. 1 Mechem on Agency (2 Ed.), 523, sec. 739; Kissell v. Railroad, 194 Mo. App. 346; Typewriter Co. v. Realty Co., 165 Mo. App. l.c. 139, 140; 2 C.J. 564, par. 206.
Action for money had and received. A jury was waived and the case tried by the court. Plaintiff recovered $1124.60, the full amount asked and six per cent interest from the date of the suit which made a total of $1138.55. Defendant appealed.
Defendant was a savings and loan association and sold stock to be paid upon monthly until it should mature and also made real estate loans. Plaintiff claimed to have bought certain stock in defendant company known as Class D stock that was two years old when she purchased it from one H.L. Williams, who was the agent of defendant at Joplin, Missouri, and that she made monthly payments thereon to said Williams until she had paid $1124.60, the amount sued for, but that she had never received the stock on which these payments were made, though often demanded, and she had also demanded same from defendant or the return of her money which had been refused.
The defendant admitted that during the time plaintiff claimed to have bought the stock from Williams and made payments thereon to him, Williams was their agent at Joplin but denied that the company was at that time selling Class D stock and denied that Williams had authority as their agent to sell to plaintiff the stock she claimed to have purchased.
The transactions between plaintiff and Williams were testified to by plaintiff and were not controverted but the testimony of defendant was for the purpose of showing that Williams, as agent for defendant, was not authorized to sell to plaintiff the stock she claimed to have bought from him. This practically confined the issue of fact at the trial to the question of the authority of Williams as agent to bind defendant by his transactions with plaintiff. Plaintiff testified that she borrowed $2750 from Williams in July, 1927, that would be due in three years at six per cent interest. This was a private loan by Williams to her and not a loan by the company. At that time she owned Class D stock of defendant that she had purchased through a former agent of defendant at Joplin. She made her monthly payments on this stock to Williams. When she went to his office in October, 1927, to make a monthly payment she told Williams that she intended to deposit in the Conqueror Trust Company of Joplin $125 per month and that company would pay her four per cent on it and in that way she would save enough to pay off her loan from him when it became due. Williams then suggested to her that she could do better than that by buying two years old D stock in defendant company. He said he had such stock that had been turned back to the company by people who wanted their money out of it and said "I can arrange it so that on this D stock if you pay one-hundred-twenty-seven dollars and forty cents a month and keep up the current payments, monthly payments in addition, you can pay this out in three years instead of ten." She agreed to do that. She then began her monthly payments to him under that agreement and continued them until Mr. Williams was discharged by defendant as its agent. She had asked Williams for the stock she had purchased and he told her that when the payments caught up the back interest on the stock, she would get the stock but she did not get it nor the pass book that went with it. The agency contract between defendant and Williams was in evidence. It was a contract entered into between defendant and a Mr. Gorman and then by consent assigned to Williams. This contract provided that the agent was appointed to act for defendant It is then provided that the territory in which the agent could act for defendant covered the counties of Barton, Jasper, McDonald and Newton. The agent should bear his own expenses, provide and maintain an office for the transaction of his agency business. All salesmen or other persons employed by him should be his agents and not the agents of the company and if their defaults or misrepresentations should cause loss to defendant, then the district agent (Williams) should be primarily responsible to the company therefor. He should use his best efforts to sell annually $500,000 of stock, certificates and other investments for defendant and if in any month he sold less than $10,000 in any county, the company could, by their agents and representatives, enter said county and makes sales independent of said district agent. All funds received by the district agent from sales, collection, or whatever sources, should be trust monies in his hands and not used for any purpose except deposit and remittance to the company except that he could retain from it his own compensation. He was to furnish bond against loss of funds collected by him. The company was to furnish to him, free, such literature and advertising matter as they should issue for general distribution. This agency contract was executed July 15, 1926, and assigned to H.L. Williams, September 15, 1926, and Williams acted as defendant's agent until May 24, 1928, when defendant discharged him.
Defendant's evidence tended to show that the company discontinued issuing Class D stock October 13, 1925, and Williams was never authorized by defendant to sell Class D stock. That when any stock is surrendered and sent in for cancellation, the cash value thereof was paid the stockholder and the stock then had no further value and could not be resold by any agent. Any stockholder could transfer his stock to another and the company would recognize the transfer. The officers of the company had no knowledge of Williams' transactions with plaintiff upon which this suit is based.
There are two assignments of error.
First: That a demurrer to plaintiff's evidence should have been sustained.
Second: That the judgment is excessive.
It is contended by appellant that Williams was not a general agent of defendant and that it was the duty of plaintiff to ascertain the authority of Williams as agent of defendant before making the purchase she claimed to have made from him. Also that the transaction was unusual and out of the ordinary course of such an agent's business and that placed upon plaintiff the burden to...
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