80 Mo. App. 386 | Mo. Ct. App. | 1899
This is an action on a promissory note alleged to have been made by Mathews & Sumner, the latter being defendant. The defense pleaded was that of non est factum. The defendant had judgment in the circuit court and plaintiffs have appealed.
The plaintiffs assail the judgment on the ground that the court erred in its action refusing their fifth instruction, which told the jury that if they believed from the evidence that A. O. Mathews and W. Gh Sumner were partners in business, then even though they may believe that said Mathews had no right to bind the firm of Mathews & Sumner for the debt in controversy, yet if afterwards the defendant Sumner became aware of the fact that he was claimed to be so held by the note sued upon and made no objection thereto, then such act would be a ratification of the execution of the note sued upon by said Sumner and he would be bound therein to the same extent as if Mathews had originally the power to execute the note.
The plaintiff James 3L Broughton testified that he was in business with his brother in Odessa and that they dissolved November 1,1888; that about a year after the note in suit was given at his store he spoke to the defendant about it, and he said that he had no money to pay it with. He made no other objection to the note. There was evidence tending to establish the partnership relation between Mathews and the defendant at the time the note was executed by Mathews by signing such partnership name thereto. There was also testimony tending to prove that Mathews & Pool were owners and engaged in operating a certain threshing machine, etc., and that while so engaged they became indebted to plaintiffs to the amount of the note sued on. There was some further evidence
If Mathews & Sumner were partners and Mathews gave the note sued on for the Mathews &.P00I debt, he was, as far as anything is disclosed by the evidence, acting' outside of the scope of his implied agency, and did not thereby bind the partnership. Cayton v. Hardy, 27 Mo. 536; Rimel v. Hayes, 83 Mo. 200. His act was no more than that of any other agent who had exceeded his authority and thereby failed to bind his principal. Filbrun v. Ivers, 92 Mo. 388.
The defendant’s third instruction, which declared that, although Mathews & Sumner were partners and that Mathews executed the note in suit to pay. the debt of Mathews & Pool without Sumner’s consent, yet if plaintiffs knew these facts when they accepted said note then they were not entitled to recover, should not have been given without the qualification contained in the plaintiffs’ said fifth instruction. These two instructions, if both given, would be well enough, but to give the latter without the former was highly improper.
The judgment will accordingly be reversed and cause remanded.