Hays, Winterbower & Sims v. Odom

79 Mo. App. 425 | Mo. Ct. App. | 1899

ELLISON, J.

This action is on a promissory note. A demurrer to plaintiffs’ evidence was sustained, the jury discharged and judgment entered for defendant.

Defendant executed the note to the partnership of Hays, Winterbower & Sims. The rate of interest and whether from date or maturity, were left blank when the note was delivered by defendant. Plaintiffs placed the note in the hands of Bedwell, a justice of the peace, for collection. It seems the note was first put in his hands unofficially and merely as a collecting agent, and that afterwards it was placed in his hands for suit. While in his hands, either as. a collecting agent, or as justice of' the peace, he altered it by inserting the figure “6” in the space left for the rate of interest and the word “date,” in the space left blank for the time at which interest should begin. This was done without plaintiffs’ knowledge or consent and when they discovered it had been done, they disapproved of it and Bedwell erased what he had thus put in.

strument: jús- " tice of the peace: collecting agent, We are of the opinion, on the foregoing facts, that plaintiffs should not be held accountable for the unauthorized acts of Bedwell. If he altered the note while in his hands officially there is no pretense of authority. But it is claimed that he l.-ii i ........ made the change when he held it as a collecting agent. If he did, he was equally without authority. It was altogether outside the scope of his agency. This is not a case where an agent by exercising an apparent (though not real) authority may work an injury to another if his act be disavowed. Here was an agency for.a specific purpose which carried with it no semblance of authority to change the terms of the note. The change of the note did not involve the manner of its collection, nor was it in any way connected therewith. It was a mere unexpected and unauthorized act disclaimed by plaintiffs as soon as learned by them, and for which they were in no sense responsible. Lubbering v. Kohlbrecher, 22 Mo. 596. On introducing the note in evidence plaintiffs should show how the alteration and erasure happened.

P.--------- ------- tratjon. 2. Sims was a member of the partnership when the note was given, but died before suit was brought, leaving plaintiffs as surviving partners, though neither of them had given bond and the admin-qualified as administrator of the partnership did not interfere with their right as survivors to collect the assets of the partnership estate. Bredow v. Sav. Inst., 28 Mo. 181; Hargadine v. Gibbons, 45 Mo. App. 460. The estate. The fact that no administration was had and that plaintiffs did not" qualify as surviving partners judgment will be reversed and the cause remanded.

All concur.