115 Mo. App. 50 | Mo. Ct. App. | 1905
— This is an action for the conversion of a lot of cattle. The judgment in the trial court was for the plaintiff. Both parties to the controversy claim the cattle through chattel mortgages executed by one Purcell; residing in the State of Kansas, each of the mortgages given for borrowed money . Plaintiff charges that defendant, through one Hopper, whom plaintiff contends was defendant’s agent, took cattle included in his mortgage and not included in defendant’s; and that if defendant did not authorize Hopper to take the cattle and sell them, it ratified his act in so doing by retaining the money arising out of the sale after knowledge of Hopper’s acts.
' It appears that in Ness City, western Kansas, there is a bank known as Citizens’ State Bank of Ness City ■ and that Hopper is president and one Engel is cashier of such bank. The evidence shows that this bank made loans, and negotiated them to other parties or institutions, among others to the defendant bank at St. Joseph, Missouri. So far as concerns this controversy, there were two loans made to Purcell, the notes and mortgages for which found their way into defendant’s possession and ownership. These loans, and others in which defendant became interested, were made by the bank at Ness City, through Hopper or Engel, or Hopper and Engel, as its chief officers. Hopper and Engel
“St. Joseph, Mo., Oct. 23, 1900.
“Citizens State Bank, Ness City, Kas.
“Dear Sir: Enclosed please find for collection and credit, items as stated below.
“Yours truly,
“J. W. McAlister, Cashier.”
PLEASE REPORT BY NUMBER.
Our No. Amount.
11372 ..........................$ 370.00
11070 ......................... 2,000.00
10989 ......................... 350.00
11016 ... (note in controversy) ... 1,800.00
“Do not hold collections for convenience of parties but protest and return immediately if not paid, unless otherwise instructed.”
Hopper was called for plaintiff and was one of the chief witnesses in the case. In his examination, some confusion necessarily arose in distinguishing what action he took on his individual account, by reason of his being individually liable on the notes, and what he took for the bank, as its president. But the evidence makes it certain that he was not defendant’s agent in making the loans, and so the trial court instructed; nor were the loans made for the defendant, though they were made with a view of being negotiated to it if they suited it. As before intimated, they were afterwards negotiated to defendant. The evidence also shows that defendant never authorized the foreclosure of the mortgages on its account. It did not know the mortgages had been foreclosed. Defendant had the notes so signed by Hopper and Engle as to make them, for all practical purposes, jointly liable with Purcell. It did not have to look to the mortgages. It had the right to go upon Hopper and Engle without concerning itself about an expensive and troublesome foreclosure. Why would defendant take it upon itself to seize a lot of cattle, care for and sell them, several hundred miles from its place of residence, when it had two persons in the immediate vicinity personally liable, who were interested in enforcing the mortgages for their own protection? Not only the oral evidence showed that defendant did not authorize Hopper to seize the cattle, but the letters of inclosure of the notes and mortgages, as above set out, exclude any such authority. Those letters addressed to the Citizens State Bank make no intimation of foreclosure of mortgages. They direct that the collections be not held,
But plaintiff contends that conceding there was no evidence o'f agency to foreclose the mortgages; yet, when defendant received the proceeds of the foreclosure, that is to say, the proceeds of the sale of cattle, which properly belonged to the plaintiff, it thereby ratified Hopper’s acts and he became an agent by ratification; and that, even though-defendant may not have know at the time it received the money that there had been a foreclosure, yet, when it afterwards learned there had, and still retained the money, it amounted to a ratification. We are of the opinion that the law as to ratification of an unauthorized act done in behalf of another has no application to the facts of the case. Since Hopper was the actor in the transaction, we will confine our remarks to him without joining Engel. Hopper owed the defendant the notes. We make the concession in plaintiff’s favor, for sake of argument, that Hopper, individually, as distinguished from the Citizens State Bank, collected the money by foreclosing the mortgage and turning the proceeds over to defendant. Yet he owed the defendant the notes and, notwithstanding he may have wrongfully taken plaintiff’s cattle, upon which to raise the money to discharge his obligation to defendant, if the latter received the money in discharge of the debt without notice of the wrong, it cannot be held to have ratified the act, or be made to respond to the wronged party by reason of retaining the proceeds after learning of the manner in which they were obtained. Money is current and may be received in payment by creditors from their debtors, though the latter
The result following the foregoing considerations is that the judgment should be for the defendant and it is accordingly reversed.