Webb v. Allington

• Decision Date: 07 November 1887
• Parties: E. T. WEBB, Respondent, v. JOHN ALLINGTON and FRANK P. ANDERSON; FRANK P. ANDERSON, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 559

E. T. WEBB, Respondent, v. JOHN ALLINGTON and FRANK P. ANDERSON; FRANK P. ANDERSON, Appellant.

Court of Appeals of Missouri, Kansas City.

November 7, 1887

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.

Reversed and remanded.

Motion for rehearing denied.

The case and facts are stated in the opinion of the court.

ROBINSON & CROW, for the appellant.

I. If a partnership existed, it was a non-trading partnership. Deardorf's Adm'r v. Thacher et al., 78 Mo 128; Smith v. Sloan, 19 Am. Rep. 757.

II. A partner in a non-trading partnership cannot bind a co-partner by a bill or note drawn or accepted or endorsed by him in firm name, not even for a debt owed by the firm, unless he have express authority from his co-partner, or it is usual or customary in similar partnerships. Ulery v. Geirich, 57 Ill. 538; Deardorf's Adm'r v. Thacher, 78 Mo. 128. Authority must be proved affirmatively to sign the instruments, and no inferences will be drawn. Dithman v Valpry, 10 R. & C. P. 128; Judge v. Branwell, 26 Am. Rep. 128. Therefore, instruction numbered one, asked by the defendant and refused by the court, should have been given.

III. The court erred in not giving the instruction numbered three asked by the defendant, for the reason that no custom as to signing notes being proved, then assuming that Allington and Anderson were partners in washing and cleaning mineral, yet express authority given Allington to execute said instrument, or subsequent ratification thereof by Anderson, must be shown to bind Anderson. Deardorf's Adm'r v. Thacher, supra; Smith v. Sloan, 19 Am. Rep. 757.

IV. The instruction in behalf of plaintiff submitted the question of the existence of a partnership, and instruction numbered two, asked by defendant, should have been given, submitting the issue of the character of Anderson's interest in the property to the jury. No matter how slight the evidence, defendants were entitled to an instruction on it, and the benefit of whatever inference the jury might draw. 45 Ill. 87; 5 Mo. 513; 42 Ga. 289; Sachett on Instruction, 14. If Anderson participated in profits as a creditor, he is not liable as a partner. Abbott's Trial Evidence, 212; 69 N.Y. 35.

V. Assuming authority proved " to borrow money" that does not confer authority to execute a note of Allington & Company, or any other note. Mechanics Bank v. Schaumburg et al., 38 Mo. 237; Bank of Trenton v. Gay et al., 63 Mo. 38. When the intention to give authority to execute the instruments sued on cannot be clearly discerned, the agency will not be recognized or implied. Story on Agency [8 Ed.] sect. 87. Authority to execute a note, implied from authority to do a certain other act, is strictly construed. 1 Daniels on Negotiable Instruments [3 Ed.] sect. 292; School Dist. v. Sippry, 54 Ill. 287; Bank of Deer Lodge v. Hope Mining Co., 3 Mon. 146; Sewanee Mining Co. v. McCall, 3 Head. 621.

VI. The court erred in admitting the instruments in evidence, as the petition described them as notes, and they were but contracts. First Nat. Bank of Trenton v. Gay, 63 Mo. 38.

PHELPS & BROWN, for the respondent.

I. The appeal should be dismissed for failure to comply with rule fifteen. This court has held that it would not go to the transcript to ascertain the character of the instruments sued on or the instructions given and refused. Goodson v. Railroad, 23 Mo.App. 76.

II. The action of the trial court in giving instructions of its own motion cannot be complained of, because the attention of the court was not called to it in the motion for a new trial. Kimberlin v. Short, 24 Mo.App. 643. There was no error in refusing to give defendant's instructions, as they were predicated on a partial statement of facts only, and left out of view altogether the questions of authority and ratification. An instruction which ignores or leaves out of view any material fact is properly refused. Baranda v. Blumeuth, 20 Mo. 162; Sigerson v. Pomeroy, 13 Mo. 620; Wyatt v. Railroad, 62 Mo. 408. So if based on a partial statement of facts. Mead v. Botherton, 30 Mo. 201; Iron Mountain Bank v. Murdock et al., 62 Mo. 70; Sheedy v. Streeter, 70 Mo. 679; Ellis v. Wagner, 24 Mo.App. 407.

III. The other matters embraced in said instructions had been already fully covered and fairly presented in the instructions given by the court in behalf of the respondent and of its own motion. It is not error to refuse instructions which announce principles embodied in those already given, or where those already given correctly declare the law applicable to the whole case. Miller v. Railroad, 90 Mo. 389; State v. Elliott, 90 Mo. 350; State v. Jump, 90 Mo. 171; Brooking v. Shinn, 25 Mo.App. 277. The sixth and seventh instructions were given, as asked by appellant, except that the court modified the sixth by adding the final words, " and unless the jury so find, they will find the issues for the defendant, Anderson, on each count of the petition."

IV. The appellant, having availed himself of the benefits of the notes made on his behalf by using the money obtained thereon in the carrying on of the necessary firm business is in equity and good conscience estopped from claiming that Allington exceeded his powers in making the instruments sued on. Ten Broke v. Winn Boiler Compound Co., 20 Mo.App. 19, and cases cited; Brown v. Wright, 25 Mo.App. 54. The rule is well established that a master will be liable on a note executed by his clerk, though without authority, if the money be actually applied to his use. Dunlap's Paley on Agency, 168.

V. The fact that appellant remained silent after being informed by respondent that his co-partner, Allington, had given the firm notes or exceeded his authority is evidence of assent both prior and subsequent. 1 Lindley on Partnership, 236 a, i 263 j ; Reubin v. Cohn, 48 Cal. 545. The rule is that not only the appointment, but the authority of Allington to give the notes declared on may be implied from the recognition or adoption of his acts by Anderson. Kiley v. Forsee, 57 Mo. 390; Southage v. Railroad, 61 Mo. 89.

VI. The giving of the notes in controversy was necessary to the carrying on of the firm business, and the money realized was applied to the uses of the firm and in such case express authority is not necessary. Deardorff v. Thacher, 78 Mo. 129.

VII. The authority to borrow the money included the power to give the notes which are sued on here. Bank v. Gay, 63 Mo. 371; McAlpine v. Cassady, 17 Tex. 449.

VIII. If the court erred in assuming the instruments declared on to be notes the defendant adopted the same theory and cannot complain. Besides the error, if any, was immaterial. State v. Stewart, 90 Mo. 507; Holmes v. Braidwood, 82 Mo. 610; Fell v. Railroad, 23 Mo.App. 216.

On motion for rehearing.

PHELPS & BROWN, for the motion.

I. The appellant's abstract of the record does not pretend to set out the instructions given by the court at the instance of the respondent, nor is the defect supplied by the record of the respondent. Even had the instructions given by the court on behalf of the respondent been presented to this court by the record the judgment would not be reversed on that ground alone, unless the appellant had set forth that as an error in his motion for a new trial.

II. The motion for a new trial is not set out in the record; hence this court cannot, under its rules and practice, determine whether or not the attention of the court below was called to the instructions complained of.

III. This court will not go to the transcript to ascertain what was done in the trial court when appellant's abstract does not set it out or refer to it. Hansman v. Hope, 20 Mo.App. 193. The judgment of the lower court was reversed upon the sole ground that the note contained a clause for an attorney's fee and that plaintiff recovered judgment therefor.

IV. It was contended by counsel for respondent that, inasmuch as the appellant had not preserved in the record the instruments sued on, this court could not consider it, and the court, in its opinion, says, " it is quite manifest from the instructions that the instruments contained some provision for the payment of an additional per cent. on the principal sum, for the court expressly directed the jury to find this additional sum if they found the issues for the plaintiff." We respectfully submit that no such instruction appears in either the appellant's or respondent's abstract of the record, except the instruction given by the trial court of its own motion, which this court expressly refuses to review, for the reason that no such error was assigned.

V. The same may be said in regard to the pleadings. No question concerning them was raised in the trial court, none presented by the record in this court, or preserved in the bill of exceptions, or urged in this court, and there is nothing to indicate to this court whether the respondent did not count upon subsequent ratification as well as original authority to execute said notes, and no objection was made upon the trial to the introduction of the instrument sued on, because it was not a note, or because of variance between the allegations and the proof.

ROBINSON & CROW, in reply to the motion.

I. Where the error complained of in an appeal from the circuit court is apparent on the face of the record it may be reviewed without the saving of exceptions or the filing of a motion for a new trial. Railroad v. Mahoney, 42 Mo. 467; Nordmanser v. Hitchcock, 40 Mo. 178. All errors apparent on the face of the record, the court will judicially notice. Jones v. Tuller, 38 Mo. 363.

II. It is apparent from the abstract of record furnished both by appellants and respondent, " that the trial court treated them (the instruments in controversy) as promissory notes. And...