1 Mo. App. 260 | Mo. Ct. App. | 1876
delivered the opinion of the court.
This is a suit on a negotiable promissory note dated Chicago, July 8, 1871, for $1,000, with interest from date at 6 per cent., payable twelve months after date;to the order of R. P. Studley & Co., and indorsed “ R. P. Studley & Co.” The note is made by William H. Rice.
The evidence shows that defendant and Edward P. Rice were partners in St. Louis, from 1862 till March 20, 1870, •as R. P. Studley & Co., at which time the partnership was dissolved; but Rice remained with Studley for two years longer, as his general business and financial agent, keeping his books and attending to his discounts and collections, and making, indorsing, and accepting commercial paper for Studley by the name of R. P. Studley & Co., in virtue of a power of attorney, executed by Studley the ■day after their dissolution, which expressly constituted Rice "the general agent of Studley, and gave him power, at discretion, to make, accept, and indorse any and all mercantile paper for R. P. Studley & Co. Under this general power, Rice, with Studley’s knowledge, indorsed, accepted, ■or made mercantile paper to the amount of about $100,000, in two years.
It also appeai'ed that, in 1868, a brother of Edward P. Rice, William H. Rice, of Chicago, who had for two or three years been in embarrassed circumstances, failed. At that time Studley & Co. were liable on William H. Rice’s paper as accommodation acceptors to about $30,000. This indebtedness was carried along, in Chicago banks principally, and gradually reduced by the giving of new paper of .Studley & Co., and payments by Edward P. Rice, until it was reduced to about $5,000 at the time of the dissolution •of the partnership of Studley and Rice. Of these transactions Studley was aware, at least in a general and confused way. He knew that his name was being used by Edward P. Rice, in Chicago banks, to help his brother Wil
No exceptions whatever were taken to evidence. No instructions were asked by plaintiff. Of five instructions asked by defendant two were refused, to which defendant excepted. There was a verdict and judgment for plaintiff, and, a motion for a new trial having been overruled, defendant brings the case here by appeal.
It is insisted that the court below erred in refusing to give the following instruction asked by defendant:
“ The power of attorney read in evidence only authorized E. P. Bice to indorse the name of the firm of B. P. Studley & Co., composed of B. P. Studley, on the paper of the firm connected with its regular business, and if the note sued on was outside of its regular business, and accommodation paper of the firm of B. P. Studley & Co., composed of said Studley and E. P. Bice, said power of attorney was no authority to said Bice to indorse the name of B. P. Studley & Co., as composed in 1871, on the note sued on.”
We see no error in the refusal of this instruction. The
It certainly might be regarded as a sufficient warrant for the execution of the note sued on, under the circumstances detailed in the evidence and set forth above.
It is also urged that it was error to refuse to instruct, at the request of defendant, as follows :
“Even though E. P. Eice was authorized to sign the name of E. P. Studley & Co. on paper given in renewal of the acceptance of said firm, that authority would not authorize him to indorse said name on the note sued on, composed partly of the accommodation acceptances of said firm and partly of the individual indebtedness of W. H. Eice ; and plaintiff, taking said indorsement on the note sued on with knowledge of the fact that it included in part the individual indebtedness of W. H. Eice, was bound to inquire as to the extent of the authority of said Eice.”
This instruction was properly refused, because it declares as a fact that the note sued on was composed partly of the individual indebtedness of William H. Eice, as to which the evidence is contradictory. That a general power to indorse notes in the name of E. P. Studley would have been no authorhy to indorse a note for the individual indebtedness of the agent, or of a third pai*ty, and that a person taking such a note, so indorsed, with knowledge of the facts, in the absence of the consent to, or ratification of, the act by Studley, could not recover upon it against Studley, may be true enough as an abstract proposition of law; and it may be that there was some evidence in this case which would have warranted the asking of such a declaration of law on behalf of the plaintiff. But the instruction, as asked,
We see no error in the record to warrant a reversal. The judgment of the Circuit Court will be affirmed.