Wahrendorff v. Whitaker
| Decision Date | 31 May 1822 |
| Citation | 1 Mo. 205 |
| Parties | WAHRENDORFF & OBER v. WHITAKER AND OTHERS. |
| Court | Missouri Supreme Court |
Whitaker and others, assignees of Prentice & Bakewell, brought an action of assumpsit, in the Circuit Court of St. Louis county, against the plaintiffs in error, on a promissory note. The defendants plead non-assumpsit, and, by consent, the trial of the issue was submitted to the Court. The bill of exceptions tendered by the defendants, shows that on the trial, the plaintiffs produced in evidence, a joint promissory note to Prentice & Bakewell, for $5,000, purporting to have been executed by Jacob Reed, for himself, and by Wahrendorff, Ober, and several others, by Jacob Reed, their attorney in fact. The counsel for the defendant objected to this note being received in evidence, unless Reed's authority to execute it should also be produced. The Court overruled the objection, and permitted the note to be given in evidence, without the evidence of Reed's authority to make it. The defendants then offered in evidence, a power of attorney, purporting to have been executed by Wahrendorff, Ober, and others, reciting an association in co-part nership, for the purpose of purchasing a steamboat, to be kept and used for the benefit of the company; and authorizing Jacob Reed, one of the partners, to make the purchase, and to execute promissory notes, or to draw or accept bills of exchange, for, on account, and in the name of each of them severally, for an amount for each of the partners, therein specially limited; and also proved, that one of the endorsees knew of the authority under which Reed acted, before the note was assigned by Prentice & Bakewell. The plaintiffs then produced in evidence, the articles of co-partnership mentioned in said power of attorney, and, upon the whole matter, the Court gave judgment for the plaintiffs, to which the defendants excepted. The plaintiffs in error rely on two grounds: First, that the Circuit Court erred in receiving said note in evidence, without evidence of Reed's authority to make it; and, secondly, in giving judgment for the plaintiffs. The first question involves the construction of an act of the Territorial Legislature, which provides that the Court, before whom any suit may be pending, founded on any writing, whether it be under seal or not, shall receive such in evidence of the debt or duty for which it was given; and that it shall not be lawful for the defendant to deny the execution thereof, unless it be by plea, supported by an affidavit of the party. Before the adoption of the statute, a promissory note could not be given in evidence, until its execution was proved; and if it had been executed by agent or attorney in fact, the authority of such agent or attorney was required to be shown, or produced with the note. But it is contended in this case, that the failure, on the part of the defendant, to deny the execution of the writing, on oath, is an admission of its existence. If this be the proper construction of the statute, it would be unnecessary for the plaintiff to produce his writing in evidence, in any case, except where its execution should be denied by the oath of the defendant. It becomes necessary, then, to examine the provisions of this statute, with a view to the former law on the subject, and the evil intended to be remedied. We have seen, that, by the...
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