55 Mo. 505 | Mo. | 1874
delivered the opinion of the court.
This action was brought on an .instrument described in the . petition as a promissory note, which is in the following words:
“On oi’ before the first day of October, 1870, we promise to pay Upton Brown & Co. or order, two hundred dollars for value received in thresher, with interest at 7 per cent, payable at Cameron, Mo. The express condition of the sale and purchase of said' thresher is such, that the title, ownership or possession does not pass from said Upton & Brown, until this note and interest is paid in' full: that said Upton Brown' & Co. have full power to declare this note due and take possession of said thresher at any timé they may deem themselves insecure, even before the maturity of said note.
“ For the purpose of obtaining credit, we certify that we own in our own name 800 acres of land, with 180 acres improved, worth over incumbrances, $-; worth of personal property over and above all indebtedness $-.”
The petition set out this note, and was otherwise in the usual form. The answer set up the allegation that the note had been fully paid when it' became due, and prayed judgment for costs. The replication simply denied the payments.
' At the trial it was admitted by the defendants, that plaintiffs composed tlié partnership firm of Upton Brown & Co., and the plaintiffs read the note in evidence and closed. The defendants were each examined as witnesses. Their evidence tended to prove, that, at the time of the execution of the note sued'on, the defendants purchased at Cameron, Missouri, of the firm of Auter Bro’s & Shutt, a thresher, for which they agreed to pay eight hundred dollars, two hundred dollars of which was paid down at the time of the purchase ; and that they executed three promissory notes for two hundred dollars each, payable to plaintiffs, and- delivered to said firm of Auter Bro’s & Shutt, as plaintiffs’ agents, for the balance of the purchase money; one of said notes being made payable in October, 1869 ; one on the 1st of January, 1870; and the third on the 1st of October, 3870 ; the third one being the same on which this suit is .brought-; that the said Auter Bro’s & Shutt represented themselves to be the agents of plaintiffs in the sale of th.e machine and taking the notes,
To all of the above evidence given by the defendants, the plaintiffs at the time objected, on the ground that said evidence was incompetent and not relevant to the cause. The court overruled the objection, and the plaintiffs excepted. The defendants introduced further evidence, tending to prove that, a short time after the second note executed for the machine had become due and had been paid, they received a letter from the plaintiffs, directing them to pay the same to Auter Bro’s & Shutt, at Cameron, Mo., which was the only letter ever received by them from plaintiffs ; that, about the time the note sued on became due, they went to Cameron to pay the balance due thereon, and paid the same to Auter Bro’s & Shutt; that they did not present the .note; that it was late in the evening when they called to pay it, and, when it was paid, they called for the note ; one of the firm hunted for the note, another member of the firm expressed his doubts as to whether the note was there, and after the note had been hunted for unsuccessfully, they gave him a receipt for the money in full discharge of the note, Auter Bro’s & Shutt, agreeing to send them the note wheu procured or found.
The court at the close of the evidence was requested by the plaintiffs to instruct the jury, as follows: 1st. “The pleadings in this case admit, that the defendants executed the
This instruction waá refused by the court in the form above written, but the court inserted in said instruction, immediately after the words therein “ to collect the same” and before the words “ before this suit,” these words “ or who the plaintiffs by their acts held out to defendants as being authorized so to collect said note.” The court then gave the jury said instruction so modified. To the action of the court, in refusing the instruction as originally asked and in modifying the same, the plaintiffs at the time excepted.
The plaintiffs also asked the court to give the jury the following instruction : “ It devolves on the defendants to prove to the satisfaction of the jury, that they paid said note to Auter Bro’s & Shutt, and that they were authorized by plaintiffs to collect and receive the amount of said note, and, unless the defendants so prove, the jury will find for the plaintiffs.” This last instruction was also modified by inserting in the appropriate place therein the same words inserted in the first instruction above set forth, and then given to the jury, to which the plaintiffs again excepted.
The court then of its own motion, and at the request of the defendants, instructed the jury as follows:
1st. “ If the jury believe from the" evidence, that the defendants purchased of plaintiffs, who then lived in Michigan, through their agents, Auter Bro’s & Shutt, at Cameron, Mo., a machine, and at the time paid said agents a portion of the purchase money, and gave to the plaintiffs three notes for the remainder of the purchase money due and payable at future times, and that said Auter Bro’s & Shutt were agents for that purpose, and that defendants or any of them paid off subse
2nd. “ If the jury believe from the evidence, that the plaintiffs by their acts held out the idea to the defendants, that Auter Bro’s & Shutt were their agents, and were authorized •as such to collect the amount due on the note sued on, and that the defendants, in consequence of such inducement, paid in good faith the amount of such note to such agents, the jury will find for the defendants.” There were other instructions asked for by the plaintiffs and refused by the court, but they do not involve any new point not involved in the modification of the instructions above set forth. The jury rendered a verdict in favor of the defendants. The plaintiffs filed a motion to set aside the verdict and for a new trial, assigning the usual causes therefor. This motion being overruled by the court, and final judgment rendered in favor of the defendants, the plaintiffs appealed to this court.
The first objection, raised on the record of this ease to the action of the Circuit Oorrrt, is to the admission of the evidence on the part of the defendants which was objected to by the plaintiffs. The evidence was objected to, because it was immaterial and irrelevant. This evidence tended to prove what was said by the agents of the plaintiffs at the time the machine was sold and the note sued on was executed. It is shown by this evidence, that, at the time the machine was purchased and the note executed, and as a part of the transaction, the agents who sold the machine told the defendants that
The next objection made to the action of the court below is, that the court improperly refused the instructions asked for by the plaintiffs, and modified them so as to improperly present the law of the case to> the jury. If the instructions as given properly presented the law of the case to the jury as applicable to the facts in evidence, it makes no difference to the plaintiffs, whether the instructions, as originally asked by them before being modified, stated a correct abstract proposition of law or not. All that they had a right to was, that the law growing out of the facts in evidence should be properly presented in the instructions. The instructions as modified tell the jury, that, unless they believe from the evidence, that defendants paid the full amount of the note sued on to plainiffs, or to some one authorized by plaintiffs to collect the same, or whom the plaintiffs by their acts held out to defendants as being authorized so to collect said note before this suit was brought,
The plaintiffs also object to the instruction given to the jury by the court, because the jury are told in said instruction, that, if they believe from the evidence, that the plaintiffs held out the persons, to whom the note was paid, as their agents to collect said note, by ratifying his previous acts, etc., that the defendants had a right to pay the note to said agents. This is objected to, because it is insisted, that there was no evidence tending to prove that there was any ratification by plaintiffs of the collection of the note sued on by the agents. The instruction does not assume that there was any ratification on the part of the plaintiffs of the act of the agent in collecting the money on the note sued on. The jury are only told, that if the plaintiffs, by ratifying the previous acts of the agents in collecting the two notes first due, and which had been collected by the agents, etc., had held them out as their agents to collect the money, etc. There was evidence tending to prove a ratification of the agents’ acts by the plaintiffs,
While the instructions given may not be worded in the most appropriate language, they are substantially correct, and, as we believe, the judgment is for the right party.
The judgment is affirmed.
In the Supreme'Court, Eeb. Term, 1874.
James M. Upton, et al., vs. Hiram Jameson, et al.
A motion for a re-hearing has been filed in this case, in which it is insisted, that the main point raised by the appellants in the case has been overlooked or ignored in the opinion delivered.
The point referred to is, that the payment of the first two notes by defendants to the agents at Cameron, who had sold the defendants the machine, the notes being in the agents’ possession when they became due, did not authorize the court to instruct the jury, that they might infer from such payment an authority in the agents to collect the last or third note when it became due, the same not being in their possession.
That point was not overlooked. The court intended to hold in the opinion delivered, that as the agents, who were authorized to sell the machine and take the notes therefor, had agreed with defendants that the notes could be paid to said agents in Cameron, and as the two first notes as they became due were found in Cameron in the hands of the agents
The motion will be overruled.