Reinhart Grocery Co. v. Powell

158 Mo. App. 458 | Mo. Ct. App. | 1911

CAULFIELD, J.

(after stating the facts). — The declaration of law in the nature of a demurrer to the evidence was properly refused.

The evidence establishes that the attorney was authorized merely to collect the account and no arrangement on his part to receive a note in payment could bind his principal [Mechem on Agency, sec. 375], unless ratified by the latter with full knowledge of the facts. [Buckwalter v. Craig, 55 Mo. 71.] The burden of proving such ratification was on the defendant. [Cravens v. Grillilan, 63 Mo. 28.] In order to have properly given the declaration of law in the nature of a demurrer to the evidence the court must have found the fact of such ratification to be undisputed. The record before us would hot have justified such a finding. Indeed, there was no evidence of ratification. Defendant’s evidence did tend to prove that about twenty days elapsed between the time of his delivery of his note to the attorney and the time of its return by the attorney to the defendant, but there was no proof that the plaintiff retained the noté for twenty days or for any time whatever, or sanctioned, or knew of, its retention by the attorney. For aught that appears the plaintiff repudiated the -transaction as soon as it heard of it and returned the note as soon as it received it.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.