110 Mo. App. 14 | Mo. Ct. App. | 1904
— Plaintiff was a mercantile corporation engaged in the hardware business and defendants composed a non-trading partnership interested in procuring a patent for a motor car and in constructing a model car to illustrate and show the value, utility and practicability of the proposed patent. R. J. Powell was secretary of the plaintiff corporation and president of the defendant partnership. Plaintiff claimed that Powell drew out money of the plaintiff corporation and used it in the necessary expenses of constructing the motor car and procuring a patent and brought this action for money had and received. On trial in the circuit court plaintiff obtained judgment, whereupon defendants came here for relief.
The evidence in behalf of plaintiff touches upon, or embraces several theories of liability, but it is of a very unsatisfactory and indefinite nature. All we can say of it is that it is unsatisfactory on any theory which it suggests. The principal evidence introduced by plaintiff came from Powell himself. From that it
There are further specific portions of the testimony in plaintiff’s behalf which go to show that if plaintiff was not acting in partnership with defendants, and if they have an action against defendants, it would be for reimbursement as a guarantor of defendants’ indebtedness which it paid in compliance with the guaranty. The witness Powell states that he was defendants’ agent and president and that he was plaintiff’s secretary in active charge of its business. That in pursuance of authority from defendants to purchase material and procure labor he attempted to do so, but found that he could not do so on the credit of the defendants and that he therefore acting for plaintiffs, with the knowledge of his partners, guaranteed the payment of the bills. If such is the basis of plaintiffs’ case it is a variance from the petition.
Again, conceding that we are mistaken in the views expressed in the first paragraph and the plaintiff company was not a member of the defendant firm, but (as plaintiff now contends) Powell and the other persons composing the plaintiff firm, were, as individuals, members of the defendant firm, still plaintiff has shown no cause of action against defendants. If any one has used it’s money it was Powell and not the defendants. Powell, whether with or without the consent of his plaintiff copartners, drew the plaintiff’s money and applied it to the payment of obligations of himself and Ms defendant copartners. There is no evidence whatever that the defendant partners knew that Powell was using the plaintiff’s money. There is evidence from which, perhaps, it might be inferred that they knew he was advancing money or incurring indebtedness beyond what the defendants had put in, but not that he was using .the money of others, either by borrowing, or wrongfully appropriating it. When
Plaintiff’s claim in its brief and argument is, that it was no party to the use of its money for defendants ’ benefit and, as just stated, there is no evidence that defendants knew its money was being used for their benefit. There was absolutely no contractual relation between them; and realizing that fact, plaintiff founds its action on the theory of money had and received whereby the law would raise a promise to pay. But. it must be kept in mind that defendants had no knowledge of plaintiff’s money and that all that may be inferred against them is that they knew Powell was using money or incurring indebtedness beyond, the sum they had paid in. Powell had no authority to borrow money for them; they were a non-trading partnership with express provision that no partnership debts were to be incurred.
¥e have not overlooked the suggestion that in consequence of Powell being a member of the defendant firm his act of taking and using plaintiff’s money was the act of the defendant firm through him as agent. But that simply recurs back to what we have repeatedly stated, that he had no authority to do so and defendants did not know that he had done so. He simply misappropriated plaintiff’s money without his co-partner defendants’ knowledge and used it in paying joint indebtedness of himself and such copartner defendants. It may be that in a proceeding to adjust the
We have hesitated as to whether the judgment should be merely reversed or reversed and remanded, but have concluded that it may be that plaintiff may be able to fall upon some certain and definite legal cause of complaint under the present petition, or under an amendment thereof. But of this we do not pretend to decide.
The judgment is reversed and the cause remanded.