165 Mo. App. 7 | Mo. Ct. App. | 1912
(after stating the facts). — I. Defendant contends that his declaration in the nature of a demurrer to the evidence should have been givgn. There is no serious controversy but that he was indebted to the plaintiff for the books, and if there was such controversy there was sufficient evidence to sustain the finding against defendant on that issue. The existence of the indebtedness being established, the burden of proving its payment or extinguishment was upon the defendant. Defendant does not assert that there was payment in money, but claims that the taking of the twelve dollar note by plaintiff’s attorney operated as a payment of the pre-existing indebtedness, and this conclusively, as matter of law. This position of defendant cannot be upheld for two reasons. (1) An agent for the collection of an account, such as the proof shows, plaintiff’s attorney was, cannot, without explicit authority, receive anything blit money in liquidation of the debt, or bind his principal by any agreement short of an actual collection and receipt of the money; if he receive anything else, such as the note of the debtor, in payment, the debtor is not discharged, unless the action of the agent is ratified by his principal. [Tiedeman on Commercial Paper, sec. 375; Mechem on Agency, sec. 375; 22 Am. & Eng. Ency. Law (2 Ed.), p. 522.] The burden of proving such authority or ratification was upon the defendant, he being the one asserting it. The evidence here dis
Under, this head the defendant also invokes the rule that although a promissory note does not extinguish the original cause of action for which it was given, without a special contract imparting to it that effect, yet it is so far regarded as a payment, that the party to whom it has been given cannot recover on the
II. Nor do we believe that the court erred in refusing the declaration of law No. 2 offered by the defendant. That declaration would compel the plaintiff to produce and cancel the note or account for its nonproduction regardless of whether the plaintiff had authorized or ratified the taking of the note and without any evidence of such authority or ratification. It was, therefore, erroneous under the view we have already expressed.
The judgment is affirmed.