Dick v. Page

17 Mo. 234 | Mo. | 1852

Scott, Judge,

delivered the opinion of the court.

This was an action in the nature of assumpsit, brought by the respondent against the appellants, for money received by them, belonging, as it was alleged, to the testator of the respondent. There was a judgment for the respondent. It appears that Page & Bacon were bankers in St. Louis, doing the business of buying and selling bills of exchange, and that the testator of the respondent dealt with them ; that he, being in bad health and about to leave St. Louis, requested Bacon to call and see him; that Bacon did so, and Doughty asked bim to make advances to his agent, if he should call upon him for money; that Nicholson, the agent of Doughty, was present, and Doughty charged him, whether he lived or died, to secure. Page & Bacon for any advances they might make on his account. After this, Doughty went to New Orleans and died on the 11th day of March, 1851. Afterwards, on the 19th day of the same month, Nicholson, the clerk and agent of Doughty, wanting funds for his business, purchased of Page & Bacon a bill of exchange on the east for $2,000, and placed in their hands, as collateral security, notes to an amount exceeding twenty-six hundred dollars. All these notes, except one, were paid to Page & Bacon. This suit is brought to recover the money so received. It is admitted, that none of the parties to this transaction had notice of the death of Doughty at the time it took place, and there would have been no question as to the authority of Nicholson, had Doughty been alive at the time the acts were done. The money received by Nicholson from Ifege & Bacon was applied to the payment of the debts of Doughty. On these facts, a judgment was rendered in favor of the plaintiff.

1. ihancellor Kent, in speaking of the revocation of the authority of an agent, says, that it is determined by tbe death of his principal. 2 Kent, 645. It is moreover said, that the equitable principle of the civil law, that the acts of an agent, done bona fide after the death of the pi’incipal, and before notice of his death, are valid and binding on his representatives, does not prevail in the English law.

This principle, which is sustained by American and English authorities, is applied to those cases in which a right is claimed through an act done by an agent in the name of his principal, who was dead at the time the act was done. The idea is, that such an act is a necessary link in the chain of title to the right asserted, and without showing the authority of the agent, there can be no recovery. The cases of Watson v. King, 4 Camp. 264; Harper v. Little, 2 Greenl.; Shipman v. Thompson, Wynne v. Thomas, Willes’ Rep., are of this class. The case of the King v. The Corporation of Bedford Level, 6 East, it is conceived, has nothing to do with this case, as the joint of it is, that a deputy register cannot do a valid act after the death of the register. In the case first above cited, the reason is given in which the English law is founded, which is, that a valid act cannot be done in the name of a dead m&n. Where a right is claimed, or a defence is set up, grounded*n an act done by an agent in pursuance to his power in the name of his principal, and it is shown, that the principal was dead at the time the act was done, the rule above stated may interpose an obstacle in the way of him who relies on the act of the agent. There are respectable authorities which maintain, that the common and civil law harmonize on this subject. So the law is understood to be in Pennsylvania. Chitty, in his work on commerce and manufactures, 223, states the law to be, that the acts of a legal agent may be good after the death of his principal, before notice thereof to those who are interested in his acts, as being done under a color of authority whic^stran-gers could not examine. Russell, another English author, in his work on factors and brokers, maintains similar views with regard to the common law, p. 360. Judge Story, in late work on Agency, acquiesces in the common law, as applied in the cited cases, and inclines to the opinion, that that law is not liable to the reproach to wbicb a difference from the civil law on this point would subject it, and that the systems may be reconciled, and that where the act, notwithstanding the death of the principal, can and may be done in the name of the agent, bis death should not be deemed to be a positive revocation under all circumstances, and that a subsequent execution of it may be valid; but that, where the act is required to be done in the name of the principal, the same objection would seem to be to it in the foreign law as does in our law ; and that the difference on this subject between our law and the latter seems to rest, not so much upon a difference of principle-, as upon the difference in the modes of executing the authority ; p. 495.

In the case under consideration, the notes left with Page & Bacon were in the possession of Nicholson. He could impart an equitable interest in them without using the name of Doughty. Page & Bacon, to maintain their defence insist on no act of the agent in the name of the principal. Nicholson may be regarded as a factor of Doughty, with authority to pass the notes by delivery, so as to warrant Page & Bacon in receiving the money due on them. To bold that this transaction is void, would shock the sense of justice of every man, and we cannot be persuaded, that a principle which would produce such a result, should be applied to the facts which exist in this case. The judgment is reversed,

the other Judges concurring.