McLachlin v. Barker, 64 Mo. App. 511

64 Mo. App. 511 | Mo. Ct. App. | 1896

Gill, J.

This case may be disposed of in less space than that taken in its statement. The really debatable questions are few. The evidence clearly establishes a conversion of plaintiff’s property. He intrusted the custody of said thirteen horses to the party in charge of “Richlawn Farm,” to be used in the payment of a stock subscription to a corporation which the owner of said farm said he was about to organize. The corporation was not organized; and instead of returning said property to its owner, as was proper, said custodian took and used the same as his own. Nine of the animals were sold within a very short time after they were received on the defendant’s farm, and the other four were subsequently taken to and held by the defendant at his place in the state of Kentucky. “A wrongful assumption of a right to control or dispose of property constitutes a conversion. Indeed, any wrongful act which negatives or is inconsistent with the plaintiff’s rightisper se a conversion.” Williams v. Wall, 60 Mo. 318-321. No demand was necessary (though the evidence tends to prove one), since in this case the party in possession of plaintiff’s property clearly so treated it as to deny any right in the plaintiff. The conversion was complete without demand. Lafayette Co. Bank v. Metcalf, 40 Mo. App. 494-502, and cases cited.

The decisive question is one of agency. Plaintiff was clearly wronged in that Dell Barker received his stock for a certain purpose and thereafter converted it. Was said Dell Barker at that time, and in that transaction, acting as the agent of the defendant? Defendant’s first instruction, given by the court with a slight modification, indicates the theory upon which the court tried the cáse. It reads:'

“In this case, the burden is upon the plaintiff to prove by a preponderance of evidence the issues involved, and unless he has so proved all the material allegations of the petition, the verdict and judgment should be for the defendant; unless, therefore, plaintiff has proved by a preponderance of the evidence that Dell Barker at the time he made arrangements to organize the proposed corporation known as the Richlawn Stock Company, and negotiated with plaintiff and received the horses in. controversy, did so negotiate and receive the same as the agent of defendant, M. I. Barker, with full authority'from the latter so to do, the verdict and judgment should be for defendant, unless he, said M. I. Barker, afterwards ratified the acts of said Bell Barker in assuming to act as his agent, if he did assume so to act.” The court added the latter part shown by italics.

This declaration embodies all the law necessary to a just disposition of the case. It was correct as matter of law and the facts there required to be shown by the plaintiff before he could recover, find ample support in the evidence. There was abundant evidence tending to prove that in this attempt to incorporate the “Richlawn Farm,” Dell Barker was defendant’s agent, clothed with full power and authority to secure the cooperation of plaintiff and others. The testimony, when read in the light of the attending circumstances, tends as well to prove that in taking plaintiff’s horses, as a pretended prepayment of stock subscription, and in the subsequent sale and disposition thereof, said Dell Barker was so acting with the defendant’s knowledge and assent; and this, too, in face of defendant’s denial on the witness stand. Judges, no less than juries, are not compelled to credit oral evidence which stands contradicted by established facts and circumstances.

From the evidence at this trial, the judge was justified in finding that Dell Barker was the general agent of the defendant, his brother, in the conduct and entire management of all business in any way 'Connected with the “Richlawn Farm.” As set out in our statement, defendant held out said Dell Barker as his alter ego in everything pertaining to that enterprise; he bought and sold stock in defendant’s name; in defendant’s name contracted for lumber, labor, and materials to improve the premises; hired hands and built houses; constructed a store for mercantile business, on defendant’s land; and used his, Dell Barker’s, own judgment and discretion in buying and selling goods and in conducting the same; executed notes in the name of the defendant, by himself as agent and manager — all, too, with defendant’s knowledge and consent. In short, Dell Barker, had, apparently, unlimited and unrestricted power and authority to represent the defendant in everything pertaining to his Missouri interests, and to do anything in relation thereto without even consulting his principal. It makes, then, little difference, if defendant did, as is claimed, instruct this general agent only to receive cash in payment for the stock subscribed in the new corporation. The plaintiff and other parties knew nothing of this limitation, and could not know thereof by the exercise of ordinary care. They had a right to act on such appearances as were held out with defendant’s knowledge. Mr. Mechem, in his admirable work on agency, thus states the law in such cases: “The authority of the agent, so far as third persons are concerned, is as broad, not only as the words of the principal, but as broad as his acts and conduct. In other phrase, it is, so far as third persons are concerned, as ,broad as the principal has made it appear to be. As respects the mutual rights and dealings of the principal and agent, the actual authority may govern; but as respects the liability of the principal to third persons, for the acts and contracts of the agent, it is the apparent authority which controls. This apparent authority may be the result of his negligent act — of his omission, silence, or aquiescence. Every person is presumed by law to contemplate and intend the natural, proximate, and legitimate results of his own acts, and he can not avoid them by asserting that he did not really intend or contemplate them. If the principal leads third persons, acting reasonably and in good faith, to believe that his agent possesses a certain authority, then, as to them, he does possess it.” Mechem’s Agency, sec. 707, et segr. See, also, Johnson v. Hurley, 115 Mo. 513, 520; Mitchum v. Dunlap, 98 Mo. 418.

In addition to all this, even admitting that Dell Barker was, at the time, unauthorized to make the arrangement he did, and take the horses in payment of plaintiff’s subscription, and yet there is convincing proof that defendant subsequently came into full knowledge of all the facts and accepted and ratified the conduct of his agent. In this connection, it must not be forgotten that Dell Barker was, all the time, insolvent; that, as defendant himself testified, his brother had no property; that everything in the place belonged to him, the defendant. Defendant resided in Kentucky; he corresponded frequently with Dell, his agent, in charge of the farm and property at “Riehlawn,” Missouri ; instructed Dell as to the matter of getting persons interested in the proposed incorporation, etc., and is it not almost incredible that of so large a transaction as this had with plaintiff, in January, 1892 (whereby thirteen fine horses were added to the herd), the defendant was never informed until more than a year thereafter. Most of these horses, too, were taken to Mexico, Missouri, a few weeks after they were sent by plaintiff to Richlawn, and sold,- and the money, it seems, went into the assets of this farm, and yet of this defendant says he had no knowledge. Printed catalogues of the horses on “Richlawn Farm” were gotten out during the year 1892 and sent broadcast over the country. These pamphlets named and advertised some of these identical horses which came from the plaintiff, called them by name and stated they were “bred by H. M. McLachlin, of Paola, Kansas,” but owned then by the owner of Richlawn Farm. Add to this the admitted fact that in the year 1893, after defendant, according to his own statement, had been out to Missouri and was fully posted as to the entire transaction between Dell Barker and the plaintiff, the four horses remaining undisposed of were, on his, defendant’s, order, sent to Kentucky and turned into defendant’s pastures, and he had them there at the institution of this suit, and it would seem the defendant can well be held on the theory of ratification alone. “It is a rule of universal application that he who would avail himself of the advantages arising from the act of another in his behalf, must also assume the responsibilities. * * *' One who voluntarily accepts the proceeds of an act done by one assuming, though without authority, to be his agent, ratifies the act and takes it as his own with all its burdens as well as all its benefits. He may not take the benefits and reject the burdens, but he must either accept them or reject them as a whole.” Meehem’s Agency, sec. 148. Defendant seeks to escape this by alleging that he had no knowledge that these horses, which were shipped to. and received by him in Kentucky, came from the plaintiff. This is another of his statements the truth of which the court might well have doubted.

But it is claimed that plaintiff’s reply, pleading a ratification, is a departure from the cause of action set up in the petition. -We think not. Proof that a party subsequently ratified a prior unauthorized act of one assuming to be his agent, has the same effect as if the evidence established agency at' the time the act was committed. “By ratifying the unauthorized act, the principal assumes and adopts it as his own * * *, it goes back to its inception and continues to its legitimate end. * * * The ratification operates upon the act ratified precisely as though the authority to do the act had been previously given.” Mechem, Agency, sec. 167. Plaintiff, now, in his petition, alleges that defendant took and converted his, plaintiff’s, horses to his, defendant’s, own use. He makes this allegation good by showing that the defendant did the act in person, or that it was committed by his, defendant’s, agent; qui facitper alium, facit-per se. And this agency may be established in either of two ways — that of prior authorization, or subsequent ratification.

The court properly refused defendant’s proposed instruction excluding all “declarations, statements, letters, and catalogues of Dell Barker.” All these declarations, statements, letters, and catalogues were uttered, written, and published by said Dell Barker while acting in the line and scope of his agency, and were, therefore, properly ■ treated as those of his. principal.

As to the suggestion that defendant ought to be allowed compensation for the feed bill of the horses while he kept them, it is sufficient to say, that there is nothing in the pleadings or evidence to justify its serious consideration. The answer, it is true, alleges that Dell Barker, acting for said company, had boarded, kept, fed, and pastured said horses at an expense to the defendant of $750 and for which, he says, a lien existed. But there is no statement of what this “expense’’ consists — no itemized charges, nor indeed any evidence as to what was done for the stock; what, how much, or how long they were fed; how much pasturing furnished; or as to what any of these things were reasonably worth, if they had been supplied. But, in addition to all this, the whole evidence shows conclusively that the parties never intended that plaintiff should pay for keeping the stock. Such claim, whether for a lien, or an ordinary set-off, must have for its basis a contract express or implied.

In our opinion the judgment is clearly for the right party and ought to be affirmed. It is so ordered.

All concur.