Woodward v. McGaugh

• Decision Date: 31 July 1843
• Citation: 8 Mo. 161
• Parties: WOODWARD AND THORNTON, ADM'RS, v. MCGAUGH AND BROWN.
• Court: Missouri Supreme Court

8 Mo. 161

WOODWARD AND THORNTON, ADM'RS,

v.MCGAUGH AND BROWN.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO RAY CIRCUIT COURT.

EDWARDS, for plaintiffs. 1. The testimony introduced by the defendant is wholly inadmissible, because it would be allowing parol testimony to vary the terms of the written agreement, or to superadd a substantive collateral agreement wholly inconsistent with the terms of the former. 2 Starkie, 551, 554, 555, 570; Chitty on Contracts, 25; Lane v. Price, 5 Mo. R. 101. 2. Admitting that it is competent for the defendants to prove fraud, covin, and misrepresentation of the plaintiffs, and thereby render the instrument in suit inoperative, as to one or all of the defendants, the evidence introduced does not support the defense, because, 1st. There is no evidence of any fraudulent design, and the law will not presume fraud. 2 Kent, 490; 3 Ames' Dig. 14, and Suppl. notes 3, 4, 5; Bowers v. Crafts, 18 Johns. R. 110; Chitty on Contracts, 223. 2nd. Representations made by an agent, or one acting in a fiduciary character under a naked authority, are an exception to the general rule, and are not binding unless it manifestly appear that the agent acted in the scope of his authority, and was empowered, in his capacity of agent, to make the declarations and representations relied upon. Chitty on Contracts, 220, note; Watkins v. Sackett's Adm'rs, 6 H. and J. 435; Lee v. Munroe and Thornton, 7 Cranch, 366. 3. Woodward and Thornton are but nominal plaintiffs, and are so wholly disinterested in the transaction, that either or both would have been competent witnesses to establish the demand in suit. The parties really in interest are the heirs and creditors of the intestate, and the administrators had no power to make any agreement to the prejudice of the former, to the making of which the legal powers of the latter did not extend, and such agreement would be void. 1 Mo. R. 214; 1 Starkie, 136, 140, 149; Lee v. Munroe and Thornton, 7 Cranch, 363; The Bank of the United States v. Dunn, 6 Peters, 51; Rev. St. p. 48, § 31; Lair v. Miller, 6 Littell, 67; 2 Starkie, 326. 4. The acts of administrators depend, for their validity, upon the facts, first, that the act was done in the exercise, and second, within the limits of their powers. If they transcend in any essential particular, their act is void. 4 Peters' Cond. R. 666; Mechanics Bank v. Bank of Columbia, 5 Wheaton, 326; 10 Peters, 161; 2 Starkie, 34; 2 Kent, 617, 619, 620; Chitty on Contracts, 57, 60; 5 Johns. R. 57; 7 Johns. R. 390; J. J. Marshall, 291. 5. Persons dealing with those acting under an authority or power, are bound to know the extent of that power. The statute defines the limits of an administrator's power, and expressly requires him, on the sale of his intestate's effects, to take bond with security. It then becomes matter of law, and a defendant will not be allowed to say he was ignorant. Rev. St. p. 48, § 31; 1 Peters, 607, and authorities above referred to. 6. Would not an agreement, like that proved by the witness, be a parol promise to answer for the debt, default or miscarriage of another (McGaugh), and void under the statute? Rev. St. p. 117, § 1. 7. An agreement like that proved could, at most, be equivalent to a promise by the administrators to pay the debt of McGaugh; and it is an old and well-settled rule, that such promise of an administrator is to be measured by the assets of the estate. 8. The judgment is informal, and not in pursuance of the finding of the court. 9. There is no evidence authorizing a verdict against the plaintiffs, for the defendant, for any amount whatever.

DUNN, for Defendants. 1. The parties are not precluded from proving the facts consistent with the writing, although not expressed in it. 3 Starkie's Ev. 1046. 2. The finding of the court upon the facts is, for all legal purposes, a verdict, and, as such, will not be set aside, unless the evidence greatly preponderates in favor of the party seeking a reversal. 4 Mo. R. 295; 6 Mo. R. 61. 3. The finding is agreeable to equity and justice upon the whole matter disclosed: there is, therefore, no error in the refusal of the court below to set it aside. 2 Blacks. Com. 299, note 2; 4 Term R. 468.

NAPTON, J.

Woodward and Thornton, administrators of W. W. Mauzey, deceased, brought an action of assumpsit against the defendants, McGaugh, Brown and Davis, upon a promissory note executed by them to plaintiffs, for $175 56 1/4, and payable twelve months after date. Process was served on McGaugh and Brown only. At the December term, 1840, McGaugh and Brown pleaded jointly the general issue; but afterwards, at the same term, withdrew this plea, and pleaded severally the general issue, with notice of set-off. Each of these set-offs were debts due by the intestate--McGaugh's amounting to one hundred and sixty-two dollars and thirty-seven cents, and Brown's to three dollars and sixteen cents, both...