94 Mo. App. 175 | Mo. Ct. App. | 1902
It was ruled by this court on a former appeal that the petition in the cause above entitled sufficiently stated a cause of action to let in evidence in support of its allegations over the oral objection of the defendant made at the outset of the trial; and as the defendant neither demurred nor moved for more definite averments, as he might have done, but merely urged the same objections on the second trial, we will disregard his assignment of error based on the alleged failure of the petition to state a cause of action. It would be unjust to permit the defendant to avail himself of that point now, when it was determined against him before and he lias since omitted to take measures to compel a more particular pleading. Marshall v. Ferguson, 78 Mo. App. (St. L.) 645.
The action was brought to recover a sum of money advanced by Marshall to Eerguson, to be lent to M. L. Ereeman, of Butler county, on the security of an undivided one-eighth interest in a parcel of land in Poplar Bluff, or near there, known as the “Eair Grounds.” At the inception of the trans
The issue of fact between the parties is whether Ferguson’s act in further securing his own note was done without Marshall’s knowledge or by his authority, and there was a direct conflict in the evidence bearing on that issue. Marshall testified that he neither authorized the loading of his security with Ferguson’s note, nor knew it had been done until Freeman had defaulted and he was about to foreclose, when he immediately taxed Ferguson with bad faith and notified him he must pay the loan. Ferguson swore the Fair Grounds tract was worth enough to secure both notes well and that Marshall authorized him to include his own note in the deed of trust.
The court charged the jury that if the appellant undertook to act as the agent of the respondent in making a loan to Freeman, and was directed to secure the loan by a deed of trust on an eighth interest in the Fair Grounds, but violated his instructions by including in the deed of trust the note to himself without the respondent’s knowledge or consent, the respondent had the right to entirely ignore the deed of trust as security and look to the appellant for his money. Appellant’s counsel contended, in opposition to the theory embodied in that charge, that if respondent recovered at all he should only recover the loss sustained by -him after collecting as much of his debt as possible by enforcing the lien of the deed of trust, and submitted the following instruction setting out that view, -which the court refused to give:
“The court instructs the jury that if you believe and find from the evidence that the one-eighth interest of the land described in plaintiff’s petition was of value sufficient to secure the payment of both of the notes in the deed of trust described, then plaintiff can not recover herein, and your verdict should be for the defendant.”
When a loss results to a principal from his agent’s failure to pursue the instructions given to him, a cause of action arises in favor of the former; for a principal is entitled to have the agency executed in his own way as the party whose interest is at stake. All agencies rest on contracts, express or implied, which must be faithfully performed like other contracts. If instructions are given as to the manner of performance, the agent is presumed to accept them if not immoral or illegal; and he should faithfully observe them in the transaction of the business unless an emergency arises which justifies him in taking some other course; and a failure to observe them, without excusatory circumstances, constitutes an action
But sometimes instructions are violated in such a way as to authorize a principal to proceed directly against the agent as a debtor or for conversion. Loyalty to their trust is firmly exacted of all agents by the law, and when one uses his position for his own ends regardless of the welfare of his principal, he becomes responsible for a resultant loss; as if he unscrupulously handles money or property confided to him to benefit himself. In such cases his principal may recover the money or the value of the property. Nor is a fraudulent intention required to render an agent liable for the full value of the property used or disposed of by him in violation of his agency, although it aggravates the dereliction. Mechem on Agency, sec. 477.
In the present case, Eerguson was guilty of abusing his
A question is raised, as to whom the burden of proof was on, by an exception saved to the following charge:
“You are instructed that if you believe and find from the evidence that the defendant, Thos. D. Ferguson, included in the deed of trust a note of $312.50 of his own without the consent and knowledge of John B. Marshall, and by reason of including said note by Ferguson, Marshall thereby lost his money, you should find the issues for the plaintiff, Marshall, and you are further instructed that the burden of showing to your reasonable satisfaction that defendant had plaintiff’s consent, or that plaintiff had knowledge and made no objections thereto, rests upon defendant.”
As a general proposition, the burden of proof rests on the party holding the affirmative of an issue; but where the plaintiff grounds his rights of action on a negative allegation and the proof of the affirmative is not peculiarly within the defendant’s-power, the plaintiff must establish this negative to make out a prima facie case. 1 Greenleaf on Evidence (16 Ed.), sec, 78; State ex rel. v. Schar, 50 Mo. 393. For instance, in an action for malicious prosecution, the want of probable cause for the prosecution must be shown by the plaintiff although he
Let us look at the matter from another point of view: perhaps no better way of determining where the burden of proof in any cause rests can be found, than by inquiring what is necessary to make a prima facie case for the plaintiff; because the burden of proof is on a plaintiff until a prima facie case is made out, when it shifts to the defendant; but until he establishes his prima facie ease, the plaintiff is not entitled to a judgment. Powers v. Russell, 13 Pick. 69; Abrath v. Railway Co., 11 Q. B. D. 444, 32 W. R. 50. If the respondent was not bound to introduce proof in the first place as to appellant’s having acted without authority when he included his own note in the deed of trust, then respondent had merely to show he turned over the amount of the loan to the appellant to be delivered to Freeman and appellant included his own note in the deed of trust and that would have given him a prima facie right to judgment. But it is obvious that no case would have been made out by such proof; for the law would raise a presumption that the money was lent to Freeman and everything duly performed, no fact being in evidence to show Ferguson was delinquent in any way, nor to support a verdict against him. It follows, therefore, that it was necessary for respondent to go further with his proof and show something was done by Ferguson which he ought not to have done. In other words, the respondent was bound
As to the fourth instruction requested by the appellant and refused by the court, which was that if Marshall had purchased the land covered by the deed - of trust at a second foreclosure sale through an agent, and thereafter realized the amount of his loan from a sale of it, he could not recover, it is enough to say there was no evidence on which to base the charge.
A point is made about Ferguson’s acting without compensation, in making the loan to Marshall for Freeman, and it is true that when an agency is gratuitous the agent can not be held liable because of a non-feasance if he never entered on the performance of the service expected of him; but it is also the law that if he does undertake the service, he must perform it in good faith and according to the instructions of his principal. Ferguson might have refused to serve Marshall without remuneration and he would not have been liable for any loss occurring through his refusal; but he undertook to act and then was as much bound as a compensated agent, to act honorably and as directed. Mechem on Agency, sec. 478; Kaw Brick Co. v. Hogsett, 73 Mo. App. (K. C.) 432.
For the error noted in regard to the burden of proof, the judgment must be reversed and the cause remanded, and it is so ordered.