Watkins v. Edgar

77 Mo. App. 148 | Mo. Ct. App. | 1898

Bland, P. J.

statement.

The first count of plaintiff’s petition is as follows: “That defendant on or about October 1, 1895, duly executed and delivered his certain certificate number 140, in writing, herewith filed, in which he recited that one Mike Jososki had due him from defendant the sum of $14.30 for work done and performed by said Jososki during the month of September, 1895, and that said sum of $14.30 was payable October 16, 1895. Plaintiff states that on or about October 1, he became and still is, the owner of said certificate by lawful purchase. That on said sixteenth day ^ October, 1895, he demanded of said defendant, said sum of $14.30, the payment of which, or any part thereof, defendant refused.” Then follows twelve other like counts, except as to date, number and name of payee, in certificates sued on. The answer was a plea of non est factum. At the close of plaintiff’s testimony, the circuit court gave a peremptory instruction to find for the defendant; the propriety of this instruction is called in question by appellant’s assignment of errors. Briefly and succinctly stated, the evidence is; that plaintiff is a furniture dealer in South St. Louis; that near plaintiff’s place of business, the defendant owns and operates the Glendale Zinc Works; that a year or more before the employment of E. P. Keller, the defendant had in his employ one Lee Emerson, as cashier and bookkeeper ; that one of the methods of settling with employees of the defendant, who quit work or were discharged, between monthly payments was to issue a certificate of indebtedness like the one sued on, called time certificates; that Emerson, and after him Keller, would issue these certificates and take them to the plaintiff and other business men in the immediate neighborhood and get them cashed for the men, and on the day following the next regular monthly pay day, cash and take them up; that the certificate was formulated by the defendant for the purposes above stated; that when Emerson quit his employment E. P. Keller was employed by defendant as his bookkeeper and cashier in Emerson’s place, and continued as Emez-son liad done before him, to pay off hands on regular pay days and to issue time certificates to discharge employees, and to such as quit work on days other than regular pay days, and frequently presented certificates so issued by him to plaintiff and other nearby merchants for the purpose of getting the cash to hand to quitting or discharged employees. The certificates sued on are in the following form:

“14.30 No. 140

“S. C. Edgar

Glendale Zinc Works.

“This is to certify that Mike Jososki has due him fourteen and 30-100 dollars. For work done in the month of September, 1895.

“Payable October 16th, 1895.

“(Signed) S. C. Edgar,

“Per E. F. Keller.

“(Indorsed) Mike Jososki.”

J “lenT-’how0

Plaintiff’s testimony is, and it is undisputed, that Keller in person, while in the employ of defendant as bookkeeper and cashier, from time to time, presented the certificates, one at a time to him and asked him to cash them for the benefit of the payees named in them; that he paid ninety-five per cent of the face value for each certificate, in good faith, believing they were all right; that he had previous to this time cashed like certificates at Keller’s request which had been paid at the defendant’s office by Keller and in defendant’s presence without objection or protest. A similar course of dealing with others was testified to by other witnesses. We think this evidence was ample to show the authority of Keller to issue the certificates sued on. The authority of an agent need not be shown by express authority, but it may be proven by the habit and course of business of the principal. Mills v. Berla, 23 S. W. Rep. 910; Mabray v. Kelley-Goodfellow Shoe Co., 73 Mo. App. 1. We think also that the authority of Keller to make out and sign his principal’s name to the certificates may be inferred from the nature of his employment. Edwards v. Thomas, 66 Mo. 468. The defense was non est factum; this plea was met and overthrown when it was proven that Keller in person presented the certificates to plaintiff and got them cashed, provided he had authority to sign them as the agent of defendant ; for if he had authority to sign them and in person presented them and received the cash on them, both he and his principal are estopped to deny their execution or genuineness, or that they were indorsed by the payee.

Rmony musfbe mil of excep-

Another error complained of, and which is sufficient to require a reversal of the judgment is this; plaintiff’s counsel asked a question of a witness; defendant objected to the question, the court sustained the objection; counsel for plaintiff then undertook to state what he expected to prove by the witness; counsel for defendant objected to his making such a statement; the court sustained this objection also, and counsel for plaintiff was not permitted to state the proffered evidence. Where evidence is excluded by the trial court, unless the same is preserved in the bill of exceptions, an appellate court can not determine whether the excluded testimony is material or not, and will not pass upon the ruling of the trial court in excluding it. Bank v. Wills, 79 Mo. 275; Bank v. Aull, 80 Mo. 199; Jackson v. Hardin, 83 Mo. 175; State v. Douglass, 81 Mo. 235. For errors herein noted, the judgment is reversed and the cause, remanded.

All concur.