66 Mo. 468 | Mo. | 1877
— This suit was brought by the plaintiffs, partners, as Edwards, Matthews & Co., against the defendants, Mary Thomas and Sarah L. Morse, as partners in a co-partnership known as the Sectional Bock Company, upon a promissory note, of which the following is a copy:
“ $3,000. St. Louis, March 19th, 1873.
“ Four months after date, we promise to pay to the order of Sectional Bock Co., Three Thousand Bollars, for value received, negotiable and payable without defalcation or discount, and -with interest from maturity, at the rate of ten per cent, per annum.
“ Thos. P. Morse,
“John B. Baggett.”
Endorsed:
“Sectional Bock Co,
By Charles Brew, Jr., Fin. Agt.
“ Charles Brew, Jr.’
A partnership, under the name of the Sectional Dock Company, was formed some 30 or 40 years ago, for the purpose of carrying on the business of docking and repairing steamboats and other vessels, at St. Louis, and then consisted of John D. Daggett, Mary Thomas, Thomas T. Morse, Patrick Rogers and Ann Eliza Hartshorn, wife of Saunders "W. Hartshorn, whose trustee was Rowland Ellis, Jr. In 1857 a partnership article was signed by the several partners, Rowland Ellis, Jr.’s name being signed by attorney, S. W. Hartshorn, husband of Mrs. Hartshorn. This article provided, amongst other things, “ that in the event of the death of either party, to the agreement, the co-partnership should not, on that account, be dissolved, but the interest of such deceased party should be continued and represented by the legal representative of such deceased party.” In 1866, Thomas T. Morse, died, and immediately thereafter his widow, the defendant, Sarah L. Morse, administered upon his estate, and then at the foot of the ^partnership article made and signed the follow
The defendants denied that the facts above stated constituted them partners as in the petition alleged. The business of the Sectional Dock Company, for many years, was managed, not by the partners in person, but by a general agent appointed by them, and whom they designated sometimes secretary, and at others cashier and financial agent. Eor some years prior to 1867, William Daggett was this general agent, but in that year he was displaced, and Charles Drew, Jr., a son-in-law of John D. Daggett, was appointed in his place, and he continued in the management until the grant of administration upon the partnership estate to Daniel Gr. Taylor, on the 8th day of July, 1873. Drew’s powers were very great; he kept the books of the concern, collected all the bills, took all the money and paid it out, kept a bank account at the Eirst National Bank, and one at the People Savings Bank. The Docks frequently took in notes as part payment of bills, and Drew negotiated them. During the last two years of his administration, Drew signed checks, notes and other documents, for that company, as “financial agent,” prior to that period as “ secretary.” Drew’s name was frequently signed to checks and notes in both ways ; and checks were given to Rogers, Hartshorn, Mrs. Morse, and John D. Daggett, by Drew, and these checks were signed with this designation; Drew always signed checks that way — the money could not be got if he did not; checks for Mary Thomas, were made out in the same way. The Dock Company were repairing and docking steamboats and barges, and vessels in the river. In the transaction of their business they took commercial paper, which was made payable to the St. Louis Sectional Dock Company; this paper was endorsed; and when endorsed, the endorsement was, “ Sectional Dock Company, by Charles Drew, Jr., as secretary or financial agent,” one or the other. The powers conferred upon Drew were extraordinary in this, that they were exclusive
The evidence also showed that' Daggett, upon the removal of his son, and the appointment of Drew, had made the statement to the First National Bank’s officers that Drew had full authority to transact all the financial business of the Sectional Dock Company, by endorsement, &c. A letter dated June 12th, 1872, at Cincinnati, from R. A. Rogers, shows also a similar recognition, as well on his part as that of Hartshorn of the financial agency of Drew. This letter even shows that Rogers was aware of and approved Drew’s extension of accommodation to the firm of T. P. Morse & Co., and that Hartshorn was at least aware of such extension ; Mrs. Morse, too, as late as February 26th, 1873, addressed a letter to Drew as “ Financial Agent of Sectional Dock Company,” referring to the concern as a partnership, to a dividend due her as a member of it, and signing her name as “ administratrix.” An instrument in the nature of a power of attorney was also offered in evidence, (held by the court defectively executed as to Mrs. Hartshorn,) as follows: “ Know all men by these presents, That we, John D. Daggett, Sarah L. Morse, admx., Mary Thomas and Eliza Hartshorn, and Robert C. Rogers, exctr., partners in the Sectional Dock Company, of St. Louis Missouri, have made, constituted and appointed, and by these presents do make, constitute and appoint Chas. Drew, Jr., of St. Louis, Missouri, the true and lawful cashier and financial agent of said Sectional Dock Company^ and in the name of the same to do and perform all and every act and thing whatsoever required and necessary to be done in the premises, as we might or could do if personally present — hereby ratifying and confirming all the said Charles Drew, Jr., as said cash
“In witness whereof, we have hereunto subscribed our names this 18th day of July, 1871.
Signed, “John D. Daggett,'
“Sarah L. Morse, Administratrix, “Mary Thomas,
“ Ann E. Hartshorn,
“ Robert C. Rogers, Trustee
of P. Rogers’ Estate,
“ By S. W. Hartshorn, Att’y in fact.”
The paper was acknowledged by John D. Daggett, Sarah L. Morse and Mary Thomas, in St. Louis ; and Mrs. Hartshorn, and S. W. Hartshorn, as att’y in fact for Robert C. Rogers, Cincinnati, as appears by the certificates attached. There was also appended the following, the execution of which was proved:
' “ Mr. S. W. Hartshorn is authorized to transact all business concerning St. Louis Sectional Dock Company, as far as my interest therein is concerned.
“ Robert C. Rogers,
Trustee of P. Rogers’ Estate.”
It was further shown that Hartshorn had for years managed his wife’s interest; that he drew dividends, attended meetings of the company, notably a meeting held at Mrs. Morse’s house, in July, 1872, when all the interests were represented, there being present Mr. Hartshorn, Robert C. Rogers, Mrs. Thomas, Mrs. Morse, Capt. Daggett, Thos. P. Morse and Mr. Drew. He frequently came over from. Cincinnati sometimes with, and sometimes without Rogers, to look after the management, and Thos. P. Morse testifies to sundry conversations had with him as to the company’s business. Several letters of his and Rogers’' were also read in evidence, showing his' interest in the. management as well as that of Rogers, and that Hartshorn recognized Drew as having the whole management of the-.business; letters were to the same effect. Much more evi
I. Death, ordinarily, accomplishes the dissolution of a co-partnership. Provision, however, may be made against sucha contingency as was done in present instance, by providing in the articles that the interest of the deceased partner shall continue, and be conducted by the legal representative of the decedent. (Coll, on Part., §§ 601, 603; Sto. on Part., §§ 5,195,196,199, and eases cited.) And if there were any option on the part of Mrs. Morse, in regard to acceptance of the provision referred to, (Sto. on Part., § 201), this option was exercised by her endorsement on the articles of co-partnership, as above shown. The proof of the partnership, and their holding themselves out to the world as such, is abundantly present throughout the record. And if any technical lack of autkoi’ity is shown as to Mrs. Hartshorn in the execution of the partnership articles in 1857, or the written authority to Drew in 1871, this lack was otherwise supplied, for John D. Daggett was appointed ■ trustee of Mrs. Hartshorn in 1863, and fully represented her interests, at least it was his duty so to do, and her husband, with the consent of her trustee, and with her. consent, it must be presumed, drew dividends for her for years. But even if Mrs. Hartshorn was not thus represented,' this would not limit or lessen the liability of those of the partners who were present, or properly represented, and who acted as partners, in the transaction of business and the reception of dividends under the name and style of the Sectional Dock Company. From the declaration given, the court
II. And we regard the agency of Drew to transact the general financial business of the concern, as amply established. The words employed in the in-A v strument above set forth, would, it would
seem, readily bear no other signification. If “true and lawful cashier and financial agent of said Sectional Dock Company,” would not necessarily import and impart authority to endorse notes, discount them, draw checks and make deposits, it is not a little difficult to see what their meaning would be. In First National Bank v. Gay, (63 Mo. 33,) we said: “If the father when stating ‘that whenever his son wanted accommodation at the bank, he was authorized to use or sign his name,’ did not by such language intend to confer authority for signing his name to a note or notes as security, it is impossible to give any meaning or force to his utterances. He must have meant to confer such authority if he meant anything. And it will not be assumed that the language of the father was a mere idle declaration. The law, therefore, will give effect to such evident intention, in the usual and ordinary manner in which such intention is commonly effectuated.”
But leaving altogether out of view the written authorization, and having regard alone to the other circumstances already noted, and others of like SOrt, no trouble would be experienced in arriving at the conclusion that Drew was fully authorized to do that which he did for years, viz: Draw checks, endorse and discount notes, make and withdraw deposits, &c., &c. The power to do such acts arises, of necessity, from the duties devolved on him by his position, and the relations he bore to the company; and the fact that it was his custom to perform such acts for a series of years, with the evident knowledge and presumed acquiescence of the company for which he acted, was authority enough. Instances there are without number, to be found in books, where au
III. We are thus led to consider the correctness of the declaration that the “ plaintiffs, when they took said were by the face of said endorsement 7 v put to inquiry as to the authority of said Drew to make said endorsement.” When the trial of this cause occurred, thé doctrine asserted in Hamilton v. Marks, (52 Mo. 78,) was in force. Since then, as is well known, that doctrine has been justly exploded by a more recent decision in the same case (63 Mo. 167). Under the last ruling, merely putting a party about to purchase negotiable paper upon inquiry is not per se sufficient; nor is gross negligence. There must be evidence of malafides. As a matter of course bad faith is not to be established by direct evidence alone, but, like fraud, its congener, may be proven by indirect or circumstantial evidence. In Goodman v. Harvey, (4 Ad. & El. 870,) the drawee refused acceptance of the bill, and it was noted for non-acceptance, protested, and afterwards transferred to plaintiffs for value. On the trial, Lord Chief Justice Denman ruled that the
A more rigid rule seems announced in Fowler v. Brantly, (14 Pet. 318,) and also in that of Andrews v. Pond, (13 Id. 65). In the former case the note was peculiar in form, not intended for outside circulation, and the figures 169, placed on the face of the paper, was common to rejected paper, in conformity to the custom of that particular bank, with which, under the special circumstances detailed in evidence, the purchaser must be presumed familiar, and hence he was held as apprised by the face of the paper of its antecedent infirmities. Whether so stringent a rule should prevail in respect of paper expressly intended for outside circulation, and not looking to negotiation in any particular bank, or to being subjected to. any local or special custom, was not announced. In Andrews v. Pond, supra, the notarial marks on the bill would appear to have been the same, in effect, .as those in Goodman v. Harvey, above .cited, and it was held in Andrews v. Pond, that a person taking a bill thus dishonored, cannot claim the privileges allowable to a bona fide holder, any more than if taking one overdue. This decision is not readily reconcilable with the leading English case just referred to, which overthrew the ease of Gill v. Cubitt, (3 B. & C. 466). But we have not been able to discover any striking parallelism between those cases and the one at bar. Here, the note
But on the .part of plaintiffs, it is not to be forgotten that their inquiries of Renick, from whom they made the purchase, as to whose benefit the money was to g0j an(j the Sectional Dock Company needed money, seemed to have received a satisfactory reply, when Renick returned with Drew’s response, giving what it would appear was a sufficient answer to each of the two interrogatories, that the discount was for the benefit of the Sectional Dock Company, and that the need for the money arose because that company was carrying $50,000 or $60,000 of steamboat paper, which they could not let go to protest without losing the steamboat business. And evidence as to these declarations of Drew was competent, whether they were true or false; in either event they were binding on the company, whose general financial agent he was clearly proven to be — since those declarations were made dum fervet opus, in the course of his employment. (Sto. on Agency, §§ 139, 452, and cases cited; 1 Gif. Ev., § 113.) Drew had, for years, been acting as the general financial agent of the Sectional Dock Company, and held out to the woi*ld by that company as duly authorized to exercise the powers- and perform the functions incident to such agency. His status was therefore as notorious as that of a cashier of a bank; as notorious as though ac
In the Farmers’ & Mechanics’ Bank v. The Butchers’ & Drovers’ Bank, (16 N. Y. 125,) it was held that the bona fide holder for value of a check, negotiable upon its face and certified to be good by the paying teller of the bank on which it was drawn, whose authority to certify was limited to cases where the bank had funds of the drawer in hand sufficient to cover the check,’ can enforce the payment of the check, although the drawer has no such funds, and the check was certified by the teller without funds, and in violation of his duty, for the mere accommodation of the drawer, and upon his promise that it should never be presented for payment. In that case, Peck, the teller, was in the habit,of certifying the checks of customers, Avith the knowledge of the officers of the bank; was furnished with a book for the express purpose of keeping a memorandum of such checks, and his authority in a proper case Avas indisputable, and as he was .expressly inhibited from certifying in the absence of funds, it was insisted that the bank was therefore not bound. But the court, after .quoting with approval the oft quoted remark from Lord Holt, in Hern v. Nichols, (1 Salk. 289,) that, “ seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts confidence in the deceiver should be a loser than a stranger,” said, “ the reasoning of Lord * * * Holt applies here with peculiar force. The bank selects its teller, and places him in a position of great responsibility; the trust and confidence thus reposed in him by the bank, leads others to confide in his integrity. Persons having no voice in
IV. Drew kept the books of the Sectional Dock Company at its true office at the foot of Lesperance street, some two mhes from the corner of Third and Olive streets. At the latter place the firm of T. P. Morse & Co., had an office, that firm being composed of T. P. Morse, J. D. Daggett, and Charles Drew. Daggett was a member of the Sectional Dock Company; Drew
“ St. Louis Sectional Dock Co.
“ As administrator of the estate of Patrick Rogers, deceased, I have received letters from the St. Louis probate court upon the partnership estate of the St. Louis Sectional Dock Co., and I hereby notify all whom it may concern that no contract or obligation for said partnership is biudiug unless made by my authority, and I request persons having any claims against said partnership, at once to present to the undersigned, or they will be precluded from the benefits of said estate.
“ Daniel G. Taylor.
The notice of protest, the sufficiency of which is here questioned, was delivered to Drew at the Third and Olive street office, by the notary, on the 22nd day of July next following Taylor’s appointment as administrator of the partnership effects. After demand of payment on Morse and Drew, at the same office, and their refusal, Daggett was not served, though the notary knew he resided in the city. Green, the notaiy, was apprised by conversations with Garesche, between the 8th and the 22nd of July, that Taylor had been placed in charge of the affairs of the partnership, and Garesche in charge of the Dock Company’s books, to overhaul them, but no direct information was by this conversation imparted to the notary as to the removal of Drew as financial agent, or of any removal of the place of business, but the notary was aware, by common rumor, that the Sectional Dock Company did transact business at their dock yard at the foot of Lesperance street.' Taylor, after taking charge of the partnership affairs, removed the table and chairs which Drew had used, from the Third and Olive street office, but though aware of the signs Drew had placed there, failed to remove them, or to post any notice there indicative of a removal. Upon this state of facts, the court being asked, declared the law to be that the service of notice was bad.
We have not been without some degree of hesitation in arriving at a conclusion co-incident in this regard, with that reached by the circuit court, but after no little deliberation, have concluded to give that ruling our sanction. And these are our reasons therefor: It must indeed be admitted that Taylor was somewhat derelict in respect of the signs of the Sectional Dock Company, at the corner of Third and Olive streets, but we cannot see that his failure has worked the plaintiffs any hurt, and this, because of the knowledge of which Whitaker, one of them, was possessed. We may lay aside and leave out of view the information which the notary may have acquired, and still that
Affirmed.