West Pub. Co. v. Corbett

• Decision Date: 02 April 1912
• Citation: 145 S.W. 868
• Parties: WEST PUB. CO. v. CORBETT.
• Court: Missouri Court of Appeals

145 S.W. 868

WEST PUB. CO. v. CORBETT.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

1. PAYMENT (§ 65) — PRESUMPTIONS AND BURDEN.

On the trial of a case, where an indebtedness has been established, the burden of proving payment is on the debtor.

2. PRINCIPAL AND AGENT (§ 105) —AGENT FOR COLLECTION—AUTHORITY.

An agent for the collection of an account has no implied authority to take a note, or anything but money, in payment; and hence, if he, without express authority, takes a note, the original indebtedness is not thereby discharged, unless the principal ratifies the taking of the note.

3. PRINCIPAL AND AGENT (§ 173)—AUTHORITY OF AGENT—RATIFICATION OF ACTS—BURDEN OF PROOF.

In an action on an account, where the defendant pleads the taking of a note in payment by an agent for collection, he has the burden of establishing the agent's authority, or the principal's ratification of his act.

4. PRINCIPAL AND AGENT (§ 173)—AUTHORITY OF AGENT — RATIFICATION OF ACTS— EVIDENCE.

In an action on an account, wherein the defendant pleaded the taking of a note in payment by an agent who had the account for collection, evidence held to show that the agent had no authority to take the note in payment, and that his act was not ratified; and hence a declaration in the nature of a demurrer to the evidence was properly refused.

5. PAYMENT (§ 17)—TAKING NOTE—EFFECT.

The taking of a debtor's note by a creditor does not operate as payment of the debt, in the absence of a special agreement that it shall so operate; and hence an action may still be brought on the original indebtedness.

6. PAYMENT (§ 67)—TAKING NOTE—BURDEN.

The debtor has the burden of establishing that a note given by him to the creditor was taken by the creditor in payment of the debt.

7. TRIAL (§ 143)—DEMURRER TO EVIDENCE— CONFLICTING EVIDENCE.

Where the evidence in an action was conflicting whether the creditor's agent agreed to accept the debtor's note in payment of the account, the denial of a declaration in the nature of a demurrer to the evidence was properly refused, even if the agent had authority to make such an agreement.

8. PAYMENT (§ 53) — PAYMENT BY NOTE — NONPRODUCTION OF INSTRUMENT.

The nonproduction of a note, given for the price of goods, in an action on the original

debt, where such production is required, is sufficiently accounted for by showing that it is lost or destroyed, and was not negotiated or sold.

9. PAYMENT (§ 53)—PAYMENT BY NOTE— PRODUCTION OF INSTRUMENT.

Where the creditor's agent having an account for collection, took the debtor's note without authority, and such taking was not subsequently ratified, the creditor, in an action on the original indebtedness, was not required to produce the note or account for its nonproduction.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the West Publishing Company against Sam J. Corbett, originally brought before a justice of the peace and tried de novo in the circuit court. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit originated before a justice of the peace; the plaintiff seeking to recover $24 as the balance of the purchase price of certain books sold and delivered by the plaintiff to the defendant and one F. D. Roberts. Upon appeal to the circuit court, and a trial had there de novo, the plaintiff had judgment for the amount sued for, and the defendant has appealed to this court. The evidence on the part of the plaintiff tended to prove that the balance claimed was justly due from the defendant to the plaintiff. But while plaintiff's attorney, who testified on its behalf, was under cross-examination, the defendant elicited from him testimony to the effect that, having the account against the defendant in hand for collection, he took a note from the defendant, on which one B. A. McKay was surety, for $12, part of the account; that in taking the note he acted without the authority of his principal; that he did not accept the note in payment or extinguishment of the pre-existing indebtedness, or make any agreement to that effect. As to what became of the note, the witness further testified on cross-examination: "I haven't that note now. I don't know what became of it. The note has been lost. I regarded it worthless. No, sir; I didn't send it to the house. I don't know whether I threw it away; I kept it for 90 days, until it was due, I think, and then destroyed or lost it. I didn't pay any attention to it. * * * I have looked for the note before bringing this suit, but couldn't find it. No, sir; I didn't sell it to anybody, and I promise it will never show up hereafter." The defendant, who was his own sole witness, gave testimony to the effect that the note had been taken by the attorney with the understanding that it was to operate as a payment of the pre-existing...