12 Mo. App. 279 | Mo. Ct. App. | 1882
delivered the opinion to the court.
On the 17th of January last, we delivered an opinion in this case reversing the judgment of the circuit court, and entering judgment in this court for the plaintiff. We stated in the opinion that the respondent had not furnished us with a brief, and that we were therefore left to conjecture as to the grounds on which the case had been decided in the circuit court. It seems that the respondent’s counsel had filed a brief with the clerk, but copies of it had not been sent into the judges’ rooms, nor was there any memorandum, on the record to show that any such brief had been filed. When the respondent’s counsel made known this fact to us,.
This case was tried in.the court below, on the following agreed statement of facts: “It is agreed by the parties herein that this cause may be tried by the court without a jury, on the following statement of facts which, for the purpose of the trial of this case in this court, are agreed to as follows, to wit: —
“ That the defendant Krum is, and was at the times hereinafter mentioned, the administrator of the estate of Daniel W. Bell, deceased ; that on the 15th of April, 1878, and for some time prior thereto, F. Gr. Davis & Bro., of Henry County, Tennessee, were indebted to the estate of said Bell in the sum of $1,226.23 ; that said Krum, as administrator as aforesaid, authorized one John A. Cole, on behalf of the estate of said Bell, to accept, at Fulton, Kentucky, of said Davis & Bro., peas and wheat, at such piices as the said Cole and Davis & Bro. might agree upon, in full payment, satisfaction, and discharge of said indebtedness of $1,226.23, and to ship said peas and wheat to New Orleans, Louisiana, for sale on account of the estate of the said Bell; that the said Cole agreed with Davis & Bro. to accept peas at the rate of $1.25 per bushel, and wheat at the i'ate of $1.10 per bushel, in payment and satisfaction of said debt; that in pursuance of said agreement under the direction of said Cole, Davis & Bro. delivered to the agent of the railroad at Fulton, Kentucky, for account of D. W. Bell’s estate, a quantity of peas and wheat, which the said Cole caused to be shipped to Newman*282 & Jones, New Orleans, for sale for account estate of D. W. Bell; that said peas and wheat wrere not measured as they were from time to time delivered to the railroad at Fulton, by Davis & Bro. ; that as soon as Davis & Bro. had completed the delivery of said peas and wheat to the railroad, but after they had all been shipped from Fulton, and a part had been sold by said Newman & Jones, the said Cole and Davis & Bro. met at Fulton, and computed the amount of peas and wheat delivered by Davis & Bro. to the railroad as aforesaid, and ascertained thereby that at the price aforesaid upon which said Cole had agreed to take said peas and wheat, Davis & Bro. had delivered to the railroad peas and wheat of the value of $1,542.20, being, according to the price aforesaid, $315.97 in value more than necessary to pay the said debt of $1,226.23 ; that neither Cole nor Davis & Bro. were aware, until all said peas and wheat had been shipped from Fulton, and until the computation above mentioned was made, that Davis & Bro. had delivered to the railroad more peas and wheat then necessary to pay the debt aforesaid, at the price aforesaid, nor was it the intention of Davis & Bro. to deliver, nor of Cole to receive, more peas and wheat than necessary to pay said debt at the price aforesaid ; that at the time Davis & Bro. and Cole computed the amount of said produce as aforesaid, Cole executed and delivered to Davis & Bro. a paper, which is hereto attached, marked ‘ Exhibit A,’ and made a part of this agreement; that the defendant Krum had not authorized Cole to execute said paper, nor to receive more produce than necessary to pay said debt at the price at which he should agree with Davis & Bro. to take it, nor was the said Krum aware, until more than thirty days after said paper was executed, and until a part of the produce had been sold and he had received the proceeds thereof, of the existence of said paper, or that more produce had been shipped to New Orleans than necessary to pay said debt at the price at which Cole had agreed to take it; that all the peas and wheat were sold in*283 New Orleans by Newman & Jones for account of D. W. Bell’s estate, and the net proceeds^ amounting to $496.23, were received by defendant Krum in his capacity as administrator, and credited by him to said estate, after he had notice of the facts set forth ; that about the 21st af May, 1878, the plaintiff, F. G-. Davis, who had then become, and is now, solely interested in this matter by virtue of agreement with the other member of said firm of Davis & Bro., caused the paper hereto attached, marked ‘Exhibit A,’ tobe presented to the defendant Krum, and demanded his alleged part of the proceeds of said produce; that, at the time last mentioned, only a part of said produce had been sold ; that, on the 25th of June, 1878, all of said produce had been sold, and the defendant had received all the net proceeds as aforesaid ; that at the time last aforesaid, said Davis again demanded of said Krum his alleged part of the said net proceeds ; that defendant has always refused to pay said Davis any of said proceeds, and from the time of their receipt to this time, has refused to admit that said plaintiff, or Davis & Bro., have any interest whatever in said net proceeds.”
Exhibit A, referred to in the following statement, was as follows —
“Fulton, Kentucky, April 25, 1878. Statement of settlement with Messrs. F. G. Davis &. Bro. by John A. Cole, agent for the estate of Daniel W. Bell: —
1878. Crs.
April 15. By 1,019 bushels peas, at $1.25 . . . $1,273 75 By 212V2 bushels wheat, at $1.10 . . . 233 75
Produce delivered, total Crs.........$1,507 50
Cr. By order on E. B. Edding....... 31 50
Cr. By cash paid by F. G. Davis for hauling, to J.
Frields, to Fulton, Ky.......... 320
$1,542 20
*284 Dr.
“F. G-. Davis & Bro., Dr., to estate D. W. Bell.
To third note, dated September 15, 1877, due ninety-days after date............ $452 00
To interest on same for forty-five days, at ten per cent 5 90
To fourth note, dated September 15, 1877, due one hundred and twenty days after daté..... 4 50
To interest on same for fifteen days, at ten per cent 1 95
To account on books due December 81, 1877 . . 314 81
To interest on same for thirty-one days, at six per cent 1 57
Total indebtedness to estate D. W. Bell . . $1,226 23
“ This certifies that Messrs. F. Gr. Davis & Bro. have an interest in the above produce» and entitled thereto when sold; they sharing their pro rata of all expenses in same.
“ John A. Cole, Agent for estate D. W. Bell.”
The appellant asked declarations of law to the effect that, on the agreed facts, he was entitled to recover ; and that, the net proceeds of the peas and wheat should be divided between him and respondent in the proportion that $315.97 bears to $1,226.23. The court refused appellant’s declaration of law, and found for respondent. Appellant filed his motion for a new trial, which was overruled, and he has brought the case to this court by appeal.
We think this case must be determined upon grounds which are presented with singular clearness in the appellant’s brief. We do not seek to undervalue the arguments which are ably presented by the counsel for the respondent in favor of his view of the case ; but we cannot escape the conclusion that these arguments are nothing more than an attempt to prove that if A. gets possession of B.’s property through a common mistake of his own agent and B., A. has a right to sell it and to keep the proceeds of it. This is1 not the law, and never has been the law.
This is hot a case for the application of the common-law rule with regard to the confusion of goods. All the cases
Here, the agreed statement does not show that the excess of peas and wheat which was delivered to the railroad for shipment was delivered to it through any wrongful, intentional, or even negligent act of the plaintiff’s assignors; but it is just as reasonable to infer that if there was any wrong or negligence in the premises, it was the wrong or negligence of the defendant’s agent. This case is, therefore, not within the rule as to the confusion of goods.
There is another rule, however, which we think does govern this case ; and that is the rule which allows a person to recover back money which he has paid to another through a mistake of both parties. The agreed statement of facts does not disclose how it came that the amount which the
But there is in this case the further fact that the defendant’s agent, Cole, agreed, in effect, to pay to the plaintiff what the excess of the peas and wheat produced, above the expense of selling it. It is true, he had no express authority from the defendant to make such an agreement; but the defendant is not, for that reason, entitled to repudiate it, and at the same time'keep the fruits of it. And he must be taken to have done this, since the plaintiff, by entering into the agreement with Cole, would seem to have parted with the right which he had of following the produce to New Orleans and reclaiming the excess from the defendant’s bailee. It is well settled that a principal, by keeping the fruits of an unauthorized act of his agent, after knowledge of the fact, ratifies the act and makes it his own. Norton v. Bull, 43 Mo. 113; Watson v. Bigelow, 47 Mo. 413. Besides, the defendant received a portion of the proceeds of the sale of the produce, after knowledge that this agreement had been made by his agent; and this was an affirmative act of ratification.
It is argued that this was no contract, — that there was no consideration to support it. The fact that the plaintiff’s assignors waived their right to reclaim in kind the excess of grain which had been delivered, furnishes a good consideration for the agreement, and makes it a contract. It also furnishes a reason why it should operate as an estoppel against the defendant; for, after the plaintiff’s assignors
The action was properly brought against the defendant individually, and not in his representative capacity. An administrator who receives from a ercdtt-or of the estate a greater sum than is due, and applies the whole sum as assets of the estate, is personally responsible for the excess above what was actually due the estate. Whether the plaintiff might maintain a bill in equity to recover it from the estate, in the event of the insolvency of the administrator, need not be inquired into, for that is not the case here; it is clear that he can recover it at law from the administrator individually (Ashby v. Ashby, 7 Barn. & Cress. 444; Cronan v. Cotting, 99 Mass. 334) ; and a party who has a clear right of action at law for money which another has received under such circumstances that, ex cequo et bono, he ought to restore it, is not to.be driven into equity in search of his money as a trust-fund.
It is unnecessary to remand the cause, though it is now suggested that we ought to do so, in order to let in any set-off or counter-claim which the defendant may have. If he has a good counter-claim, it ought to have been pleaded. If he has a good set-off, it may be made the subject of a separate action. The agreed facts enable us to enter judgment here. From those facts it appears that the amount which the plaintiff was entitled to receive from the defendant, on the 25th of June, 1878, was $101.66. The judgment of the circuit court will be reversed, and judgment will be entered in this court for the amount, which will be produced by computing interest on this sum at six per cent per annum from that date to the date of the judgment, and adding the interest to the principal. It is so ordered.