Ferris v. Thaw

72 Mo. 446 | Mo. | 1880

Sherwood, C. J.

1. variance. I. If there was any discrepancy between the note declared on, and that offered in evidence, and defendants were misled thereby, they should have taken advantage of such variance in the manner pointed out by the statute. 2 Wag. Stat., 1033, § 1; Turner v. Chillicothe, etc. R. R. Co., 51 Mo. 501.

II. The giving of the note in suit, as shown by the testimony, was ratified by all of the defendants. Thaw’s testimony shows this, and the court of appeals did not err in so stating the matter in its opinion. The testimony of Thaw as to the presence of the defendant Ryder at the meeting when the ratification occurred, was that he thought Ryder was there; this was tantamount to saying, that according to the best impression and recollection of witness, Ryder was present. This was certainly sufficient to go to the jury as evidence of Ryder’s presence.

2. Batification of Acts of Agent. III. If the act of Thaw met with ratification and adoption at the hands of defendants, this was equivalent to prior authorization, and needed no new Consi(1 oration to support it. First National Bank, etc., v. Gay, 63 Mo. 83; and the case is to be regarded in the same light, as if authority had been originally conferred.

IV. Taking it thus that the act of Thaw in respect of the new note was ratified by defend,mts, they are to be treated as original promisors; as undisclosed principals 1 as much bound by Thaw’s act as if their own fingers had guided the pen, and their own signatures appeared on the paper. For if the agent possesses the requisite authority to make an unsealed instrument, and makes it in his own name, whether he discloses his agency or not, or his principal or not, either agent or principal may sue or be sued on the contract, unless there be a clear manifestation that both parties intended that the agent is to be exclusively liable, and the principal is not to be resorted to in any event; and parol evidence is admissible to establish such intention, as this evidence does not contradict that which, is written, but only serves to show that others than those mentioned on the face of the paper, are bound also, since the act of the agent is that of his principal; the liability of the latter depending ou the act done, and not merely on the form in which such act finds expression. Story on Agency, §§ 160, 270, and case cited.

V. The instructions given on the part of the plaintiff and defendants respectively, presented the law of the case with substantial clearness; and we discover no such error in this regard or in any other point assigned by defendants as materially affects the merits of the action or warrants us in awarding a reversal. The judgment, is therefore, affirmed.

Napton, J., absent. The other judges concur.