96 Mo. 468 | Mo. | 1888
The record discloses the following facts: That on the twenty-third of March, 1882, one Mary Grogan recovered judgment in the St. Louis circuit court against a corporation, known as the Pope Iron & Metal Company, and a corporation named the Broadway Foundry Company, and the city of St. Louis, for thirty-five hundred dollars, for the death of her minor son, occasioned by the negligence of defendants; that an appeal from said judgment was prosecuted to the St. Louis court of appeals, where the judgment of the circuit court was affirmed, and from this judgment of affirmance, the said Pope Iron & Metal Company prosecuted an appeal to this court, which resulted in an affirmance of said judgment; that on taking said appeal from the judgment of the St. Louis court of appeals to this court, an appeal bond, of which the following is a certified copy, was given, to-wit: “Know all men by these presents, that we, Pope Iron & Metal Company as principal, and Richard C. Pope and H. W. .Burton as sureties, are held and firmly bound unto Mary Grogan in the sum of eight thousand dollars, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated at St. Louis this nineteenth day of June, 1888. The condition of the above obligation is such, that whereas Pope Iron & Metal Company has appealed from the judgment rendered against it and in favor of Mary Grogan in the St. Louis court of appeals. Now if said appellant shall prosecute its appeal with due diligence to a decision in the supreme court, and shall perform such judgment as shall be given by the supreme court, or such as the supreme court may direct the St. Louis circuit court in the city of St. Louis to give, and
The judgment thus obtained, was duly assigned by said Mary Grogan to George M. Stewart, and was by said Stewart duly assigned to Robert A. Campbell, the plaintiff in this suit, who is and was at the time of said assignment, the comptroller for the city of St. Louis, and who paid out of the funds of the city the sum of §4,287.50 to said Stewart therefor. It also appears that said Mary Grogan, on the twenty-third of December, 1885, by her certain writing, sold, transferred, and assigned all her right and interest in said appeal bond to plaintiff Campbell, and it is upon this appeal bond that he sues the parties who executed the same, alleging in his petition that the Pope Iron & Metal Company has not paid said judgment or any part thereof, and asking judgment on said bond for the amount of said judgment, interest and cost.
The defendants denied the execution of the appeal bond and further set up the defense that the Mary Grogan judgment, by virtue of the payment made by Campbell out of the funds in his hands as comptroller of the city of St. Louis, was in law satisfied. A trial before the court resulted in a judgment for defendants, and the cause is before us on plaintiff’s appeal therefrom.
On the trial, among other things, it was proved that R. C. Pope, at the time he signed the appeal bond, was president of the Pope Iron & Metal Company, and that as such, he signed the name of said company to said
It is claimed by respondents that the appeal bond in question, though signed and sealed as shown in the copy above given, was never executed by the Pope Iron & Metal Company, inasmuch as the seal of the corporation was not affixed thereto. “The old rule of the common law undoubtedly was, that corporations aggregate-could contract, or appoint special agents for that purpose * * * only by deed. In England, this rule has in modern times been greatly, though gradually, relaxed; and in our own country, where private corporations * * * have been multiplied, beyond any former example, on account of the inconvenience and injustice which must, in practice, result from its technical strictness, the rule has, as a general proposition, been completely done away.” Ang. & Ames on Corp. sec. 219.
While a seal of a corporation, affixed to a writing or contract executed by the proper officer of the corporation, is evidence that the contract or writing is a corporate act, and that the officer executing it did not exceed his authority, it seems to be nevertheless true, that if the officer executing the instrument for and in behalf of the company was authorized by vote or resolution to execute it, that such authorization would dispense with the necessity of affixing the corporate seal, inasmuch as such resolution or vote would as clearly, if not more so, indicate that the act was a corporate act, done by the authority of the corporation, as affixing the seal would indicate it.
“The acts of the board of directors, evidenced by a written vote, are as completely binding on the corporation, and as complete authority to their agents as the most solemn acts done under the corporate seal. ” 2
In Chouteau v, Allen, 70 Mo. 290, it is held that notice to the officers of a corporation of the unauthorized acts of their predecessors in office is notice to the corporation, and if no dissent is expressed, ratification will be presumed and the acts become binding on the corporation. So in Keiley v. Forsee, 57 Mo. 390, it is said that it is a settled rule that not only the “appointment but the authority of the agent of a corporation may be implied from the adoption or recognition of his acts by the corporation.”
In view of the principles above stated, and the fact that in the suit of Mary Grogan against the defendant corporation and others, the statute authorized it to be brought into court by service of summons upon its president or other chief officer, and in view of the fact that when thus brought in, it is held to know what transpires in the suit, and in this case, to the knowledge of the fact that it had taken an appeal from the judgment of the St. Louis court of appeals to this court, and that an appeal bond had been given to operate as a supersedeas,
It is next insisted that the evidence shows the payment out of the city funds in plaintiff’s . hands, as comptroller of the city of St. Louis, to Stewart, for the assignment of the judgment to him by Stewart was a satisfaction of the judgment, and that for that reason, no action could be maintained either by Mrs. Grogan or her assignee on said appeal bond, the condition of the bond having been fulfilled by the satisfaction of the judgment. Whether the payment made by Campbell was a satisfaction of the judgment depends greatly upon the intention with which it was made and upon the construction to be put on the following provision of the charter:
“Sec. 9. — Whenever the city shall be made liable to an action for damages, by reason of the unauthorized or wrongful acts, or of the negligence, carelessness, or unskillfulness of any person or corporation, and such person or corporation shall also be liable to an action on the same account by the party so injured, the injured party, if he sue the city for damages suffered by him, shall also join such other person or persons or corporation so liable, if residing in the state, so that they can
It is evident that, under this charter provision, the joint judgment rendered against the city of St. Louis, the Pope Iron & Metal Company and Broadway Foundry Company was only enforceable against the city by execution in the event that payment of the judgment could not be enforced against the other defendants. The liability of the city is contingent and made to depend on the fact that the other defendants in the judgment are insolvent, and in this respect, the city stands upon different ground from that occupied generally by joint tort-feasors.
Keeping this distinction in view, can the payment made by Campbell, with the funds of the city for the assignment of the judgment be held as a satisfaction of it 2 This question must be answered in the light of the authorities. In Freeman on Executions, section 444, it
The rule laid down in New York seems to be recognized in Massachusetts and is distinctly affirmed in Alabama and North Carolina.
On the other hand, in the case of Coffee v. Tevis, 17 Cal. 239; Wheeler’s Estate, 1 Md. Ch. 80; Brown v. White, 5 Dutch. [N. J.] 516, the right of any defendant to furnish money to pay the whole judgment by taking an assignment to a third person, to employ the judgment as a means of enforcing contribution from his defendants, is distinctly and confidently affirmed. The right to subrogate in such cases is made to depend
The same doctrine is announced in the case of McIntyre v. Miller, 13 M. & W. 728, when this question underwent investigation, where it is said: “To construe that as a payment which was meant to be an assignment is a contradiction in terms.”
Viewing the transaction or payment in this case in the light of the intimation made in the New York case above referred, to that, under special circumstances, a payment could be made and an assignment of the judgment taken to a third person that would not operate as. a satisfaction of the judgment, the “special circumstances” referred to maybe said to exist in this case considering the relation that the city of St. Louis sustained to its co defendants, the Pope Iron & Metal Company and Broadway Foundry Company as to its ultimate and contingent liability on the Mary Grogan judgment. Viewing it in this light and in the light of the line of authorities last cited, and the intimation contained in the case of St. Francis Mill Co. v. Sugg, supra, that the character of the payment must be determined by the intention with which it was made, we must and do hold that the payment made by Campbell for the assignment of the judgment was not intended to be a satisfaction of the judgment, and that the assignment thereof to him was made for the purpose of keeping the judgment alive, so that it might be enforced against the co-defendants, who under, the judgment and charter provision above quoted, were primarily liable for its payment.
. The trial court, as shown by the instructions given, held that the judgment was satisfied by the payment made by Campbell and tried the case on a different theory from that herein announced, and the judgment is hereby reversed and cause remanded.