Alexander v. Wade

106 Mo. App. 141 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts). — 1. Appellant alleged in his answer that the interpleaders were not necessary parties to the suit and insists here that they had no legal capacity to sue by interplea. If the interpleaders have no capacity to sue, the fact appeared on the face of their interplea and the objection should have been raised’ by special demurrer. Section 598, Code of Civil Procedure, R. S. 1899. By answering the plaintiff waived the objection. The Mechanics’ Bank to use of Davis v. Gilpin, 105 Mo. 17; Gregory v. McCormick, 120 Mo. 657.

2. There are some minor and technical objections to the abstracts filed and we are asked- to call for the original bill of exceptions. An examination of the abstracts shows that the appeal was taken in proper form and they contain enough of the evidence heard at the trial to fully possess us of the facts of the case, hence there is no necessity to resort to the bill of exceptions.

3. The arrangement under which the seventeen hundred and fifty dollars were «deposited in the hank by Wade is out of the ordinary. The deposit was made on the demand of Hays and Rodgers, yet neither of them knew whom Wade owed, or what particular firms or individuals would be benefited by the deposit They undertook to act for Wade’s commercial creditors as a class, that is, for the creditors to whom he was indebted for the goods they’were purchasing from him and not for all his creditors nor for his creditors generally. Their primary motive was, perhaps, to avoid any imputation of fraud to themselves in having made the purchase of the goods with knowledge that Wade was largely indebted for their purchase price. 'Whatever may' have been their motive, their action was not only lawful, but commendable, and the contract which they made with Wade in respect to the deposit was one which his creditors might lawfully have made with him and, therefore, might ratify after it was made, although Hays and Rodgers had no authority for the creditors to make it. As is said by Mechem on Agency, at section 112, “It is, therefore, the general rule that one may ratify the previous unauthorized doing by another in his behalf, of any act which he might then and could still lawfully do himself, and which he might then and could still lawfully delegate to such other to be done. ’ ’ In Suddarth v. Lime Company, 79 Mo. App. 592, we held that if A had no authority to contract for B, yet if B ascertained that he had so contracted and ratified the act, he was bound by. the contract. In McCracken v. City of San Francisco, 16 Cal. 591, Field, Chief Justice, said: “To ratify is to give validity to the act of another. A ratification is equivalent to previous authority. It operates upon the act ratified in the same manner as though the authority had been originally given. ’ ’ See also Ruggles v. County of Washington, 3 Mo. 497; Summerville v. Railroad, 62 Mo. 391; Hartman v. Hornsby, 142 Mo. 368; Bank v. Hughlett, 84 Mo. App. 268.

• The creditors, for whose benefit the deposit was made, being possessed with the power to make the contract themselves, in their own behalf, might thereafter ratify the contract made by Hays and Rodgers, although the latter were without authority to act as their agents and the ratification would operate upon the deposit as though Hays and Rodgers had authority as agents of the creditors to contract for the deposit for the purpose for which it was made. It is admitted that the inter-pleaders are commercial creditors of Wade and hence are creditors for whose benefit the deposit was made. By their interplea they have ratified the act of Hays and Rodgers and occupy the same situation in respect to the deposit as if it had been made for their benefit under a contract with their authorized agent or with themselves and being for their benefit, ratification will be presumed. Kingman & Co. v. Cornell-Tebbetts Co., 150 Mo. 282. The contention, that the names of the creditors were not furnished to the bank, is without merit. Their bills for the goods sold to Wade were in the vaults of the bank and were, therefore, accessible to it. Nor is there any merit in the contention that none of the bills could be paid to the bank until approved by Wade. The stipulation in the .contract, that the bills should be approved by Wade before payment should be made, was for the protection of the creditors themselves as well as for the protection of Wade. But it does not follow that if Wade had wrongfully and arbitrarily refused to approve any bill that the creditor whose bill was thus refused would be denied or deprived of any right in the deposit, for he might establish the justice of his claim in any court of competent jurisdiction and through the court reach the fund for the payment of his debt.

4. Because it is admitted that Wade, by a system of false accounts and by entering into a conspiracy with others, could have withdrawn the entire deposit and appropriated it to his own use, it is contended that the deposit was for the sole use of Wade, which contention is also without merit. A path of rascality and chicanery is open to whoever is sufficiently depraved and foolish as to follow it, but there is no presumption that men will act dishonestly rather than honestly, in fact, the presumption is the other way, besides, the creditors were in a position to protect the fund from being diverted to any purpose other than the one for which it was deposited, if any attempt to so divert it had been made by Wade; and for the reason they could control it, the fund was not the subject of garnishment.

5. Objections were made to the introduction of parol evidence in respect to the contents of the contract. This evidence was introduced before the contract itself was produced on the trial. An examination of the evidence shows that it did not contradict the terms of the contract in any particular, and while it was inadmissible, after it was shown that there was a written contract in existence that could be produced and was after-wards produced, the error is non-prejudicial, as the evidence neither contradicted nor varied the terms of the contract. But whether or not there was error committed in the admission of evidence, the error will not avail appellant, for the reason that under the competent evidence, to which no objections were interposed, the judgment is clearly for the right party and should not be reversed, notwithstanding incompetent evidence was admitted at the trial. Southern, etc., Bank v. Slattery’s Admr., 166 Mo. 620; Swanson v. City of Sedalia, 89 Mo. App. 121.

The judgment is affirmed.

Reyburn and Goode, JJ., concur.