73 Mo. App. 135 | Mo. Ct. App. | 1898
The plaintiff and the defendant, the Lowe Furniture Company, are both business corporations organized and existing under the provisions of the statute of this state. This suit was brought against defendants on the following written undertaking, to wit:
“"Webb City, Missouri, February 11, 1896.
• “We, the undersigned, do hereby subscribe the amounts set opposite our respective names for the purpose of forming a stock company, with a capital of $5,000, to furnish and open the Newland Hotel.
“(Signed) Lowe Furniture Co., $1,000.”
This was followed by the names of other subscribers with the several amounts by them subscribed. It was admitted that the defendant Lowe was general manager of the Lowe Furniture Company, and that the name of the latter was subscribed to said undertaking by the former. It was also further admitted that all of the subscribers to said undertaking, except the Lowe Furniture Company, subsequently signed the articles of association in the manner required by statute, and were duly granted a certificate of incorporation under the name of the “Newland Hotel Company,” and that plaintiff is such company.
There was a trial by the court without the aid of a jury in which there was a finding in favor of the defendant, the Lowe Furniture Company, but against the defendant Lowe, and judgment was given accordingly. The last named defendant appealed.
It is conceded that the subscribing the name of the furniture company to said undertaking, no difference by whom, did not bind it for the reason that such undertaking, as to it, was ultra vires; but it is contended that inasmuch as the defendant Lowe -.attempted to bind the furniture company and failed, he therefore bound himself, and that the case comes within the rule that an agent who acts without authority binds himself and not his principal. This rule is not of universal application. The statute under which the furniture company was organized — Revised Statutes,
It is a well settled principle that persons dealing with corporations through their agents are bound at their peril to take notice that the agent is duly empowered in the premises, and are chargeable with knowledge of his authority to bind the corporation, and such persons are, too, chargeable with notice of the purposes of the. creation of the corporation and of its powers. Thompson’s Com. on Corp., secs. 5973, 5974 and 5975, and authorities there cited; Story on Agency, sec. 265; Sanford v. McArthur, 18 B. Mon. 411; McCurd v. Rogers, 21 Wis. 197.
By reference to section 550 of Mechem on Agency, it will be seen that there is a long line of cases which hold that when a promise is made in the name of the principal and as his contract, the agent can not be held liable on it but only for the deceit or breach of warranty.
Simmons v. R’y, supra, is unlike this case in this, that there to the name of the surety in the obligation was added that of the agent who had signed the surety’s name as well as his own thereto, while here, on the face of the subscription, only the name of the furniture company appears. It does not appear thereby that the defendant Lowé signed the former’s name thereto as its manager, nor, indeed, in any -'other capacity, so that in no view of the case can it be held that the subscription on its face shows it to be the subscription of defendant Lowe, and that therefore he is individually liable thereon. Byars v. Doores, 20 Mo. loc. cit. 285; Coffman v, Harrison, 24 Mo. 524.
As stated by Judge Brewer, in Abbeles v. Cochran, 23 Kan. 405, the doctrine is. clear that where the con
This case is not, in our opinion, within the general rule stated at the outset. It follows, therefore, that the learned circuit judge erred in refusing the defendant’s instruction in the nature of a demurrer.
The judgment will accordingly be reversed.