Humphrey v. Jones

71 Mo. 62 | Mo. | 1879

On Rehearing.

Sherwood, C. J.

The original opinion in this ease was based upon an assumed similarity between it and the one which it apparently followed. Upon a more careful examination of the two cases, however we find them totally unlike in facts and consequently the law applicable to them. In the former case there were three directors, who endeavored to bind the school district by separate action, and not as a board; and we held the district could only be bound by the directors when strictly acting within the limits of their official capacity. Here, there, is but one director, and the question is, whether he, having failed to bind the school district by the contract which he signed, is himself individually bound thereby. The note sued on is in this form :

$700. November 3d, 1868.

One day after date I, as director of sub-district No. 4, township 54, promise to pay to George T. Pitzer, or bearer, the sum of seven hundred dollars, value received, negotiable and payable without defalcation or discount, with interest from date at the rate of ten per cent per annum. William Jones, director of sub-district No. 4, T. 54, R. 1, Pike county, Missouri.

Signed George K. Pitzer,

Foster Hill,

Azakiah Humphrey,

Martin Haney.

It is conceded on all hands that the utmost fairness characterized the transactions, which resulted in the execution of the note by the defendant. Neither that instrument, nor the evidence adduced at the trial give the slightest countenance to the idea that Jones intended to be bound or that those who urged and directed him to execute the note, intended him to assume any personal obligation. At the “ meeting,” called for the' purpose of raising tlie necessary amount to build the school house, and at which meeting the plaintiff, who acted as secretary, as well as the other signers of‘the note were present, Jones was directed to draw up and sign the note “ so as to bind the district.” “ It was intended as a district note and the agreement was that the note .was executed as the note of the district.” A copy of the school law was in use at the meeting, and all participated .in reading it, and arrived at the unanimous conclusion that the district could be bound .in the manner attempted.

We have no doubt that ihe construction of section 6 of the school law, (Acts 1868, p. 166), was an erroneous one. _ The question then is, h'ow stands the case with the defendant. Is he bound by the nbte'or not? In Smout v. Ilberry, 10 Mees. and Wels. 1 (a leading case), Mr. Baron Alderson, in discussing the gbneral principles applicable to all agents, divided the liabilities.of agents into three classes: 1. Where the agent .makes .a. fraudulent representation of his authority with intent to deceive. 2. Where he has no authority and knows it, but nevertheless makes the contract as having such authority. 8. Where not having in fact authority to make the contract as agent, he yet does so under the bona fide belief that such authority is vested in him, as in case of an agent acting under a forged power of attorney which he believes to be genuine, and the like; and he remarked: “On examination of the authorities, we are satisfied that all. the cases in which the agent has been held personally responsible, will be found to arrange themselves under one or other of these three classes. In all of them it will be fbund, that he has either been guilty of some fraud, has made some statement which he knew to be false, or has stated as true what he did not know to be true, omitting át the same time to.give such information to the other contracting party, as would enable him, equally with himself, -to judge as to the authority under which he proposed to act.” Applying the principles announced in that case to the present case, we find no room to question that it falls within the third subdivision, or class above noted, for here it is shown beyond all cavil or dispute, that no fraud or concealment was used by defendant, because he took his copy of the school law to the meeting, and all of those present read it for themselves. Hence no omission to give information can be laid to his charge, as the means of that information to-wit, the school law, was equally accessible to all.

Mr. Justice Dillon, in a note to section 176, in his work on municipal corporations, says : “ It is held, that where the officers.of a public or municipal corporation acting officially, and under an innocent mistake of the law, in which the other contracting party equally participated with equal opportunities of knowledge, neither party at the time looking to personal liability, the officers are not in such case personally liable, nor is the corporation liable.” And numerous authorities are cited by the learned author, which announce that doctrine. This view of the subject accords well with our own adjudications. Klostermann v. Loos, 58 Mo. 290 and cases cited. Nor do we think it affects the principle under discussion, that there was not in reality under the law of 1868, any such corporation as that mentioned in the note now in suit. Holding these views, we reverse the judgment.

All concur.