88 Mo. 37 | Mo. | 1885
Rehearing
On re-hearing.
We adhere to our former ruling in this case, but for the following reasons, that is to say : We affirm the action of the court of appeals, including that of the trial court, upon the distinct ground, as shown by the record in the cause, that the witness, Dickson, was the attorney and agent of defendant in procuring the signatures of said Levy & Brother, and the said plaintiff, as well as others, to the said composition agreement, which is as follows: “ We, the undersigned creditors of Grustave IToeber, of St. Louis, Missouri, do hereby agree and accept in full payment by and satisfaction of all his indebtedness to us and each of us, thirty-five cents on a
In explanation of this agreement Dickson in his testimony added that, “$1,513.50 was fifty per cent, of their claim. Thirty-five per cent, of it was to be paid in the regular settlement, and they were instructed to draw •uponhim for the additional fifteen per cent, at sight” (which, we may add, the record shows was done and paid after the said composition agreement was fully perfected .and executed),' and that, thereafter, said Dickson, in the further prosecution of his said agency, presented said •composition agreement to the plaintiff with the said signature of said Levy & Brother thereto affixed ; and pro•cured its signature thereto without disclosing to plaintiff how the said signature of said Levy & Brother had been ■obtained.
It is, however, earnestly insisted that the the question of Dickson’s agency is eliminated from the case. But we disagree with this view of the case and for the following reasons : It is not disputed, as before stated, that Mr. Dickson was employed by defendant to effect the said.composition agreement with all his creditors, at thirty-five cents on the dollar, and that, when he called
The agreement of Dickson to give Levy & Brother a preference of fifteen per cent, was, however, connected with and grew out of the subject-matter of the composition which Dickson was employed by defendant to effect, and whether known to defendant or not was immaterial. The defendant intrusted Dickson with the duty and employment of making the settlement with the plaintiff. The preference given by Dickson to Levy & Brother, and his knowledge thereof, to him in the course of this transaction and while engaged in making-the settlement in defendant’s behalf, and the law charges the defendant with knowledge thereof, and in such circumstances renders it obligatory upon him, in favor of the party misled thereby. Story on Agency, section 140, and authorities cited in note 1; Ibid. sec. 443, and authorities cited; Chouteau v, Allen, 70 Mo. 341, 291 ; Hayward, Assignee, v. Ins. Co., 52 Mo. 181 ; Harriman v. Stowe, 57 Mo. 93 ; Ford v. French, 72 Mo. 250; Livermore v. Blood, 40 Mo. 48.
The composition agreement submitted by Dickson in defendant’s behalf to plaintiff, upon its face-shows that the creditors executing it had thereby agreed to accept thirty-five pe;r cent, in full of' their several demands, and the failure of Dickson to disclose the preference to Levy & Brother, a knowledge of which by the agent the law imputes to the principal, was a concealment of a material fact and upon which the law attaches an infirmity to the contract, and we place our judgment distinctly upon these grounds. If this view of the law be correct, the evidence excluded by the court was irrelevant and immaterial.
The court of appeals seems to have placed its affirmance of the judgment of the lower court upon the broad ground, that a composition agreement between a debtor
Lead Opinion
In the trial court the jury found a verdict for the plaintiff, and there was judgment accordingly; from which the defendant appealed to the St. Louis coui’t of appeals, where the judgment of the circuit court was affirmed, and the defendant again appealed to this court. The case is reported in 11 Missouri Appeal Reports, 475. The facts of the case sufficiently appear in the opinion of that court. Upon examination of that opinion, the reasoning and conclusions of that court appear to be well sustained by the authorities cited. The briefs of counsel in this court furnish no sufficient reason for a reversal, and for that reason its judgment is affirmed.