Webb v. Allington

1. Practice — Instructions—Motion for New Trial. — Where objection is not made to instructions in the .motion for new trial, no error is assignable in this court thereon. And where instructions are asked and refused, and the action of the court is not excepted to at the time of such refusal, this court is precluded from their consideration. 2. Partnership — Powers op Partner in a Non-Trading Partnership. — In the case of a non-trading partnership, as in this case, one partner could not bind the other by a note executed by him in the partnership name, without prior authority therefor, or evidence that it was customary so to do. But the giving of a promissory note, bearing customary rate of interest, for borrowed money, is so usual, that it may be presumed to have been within the contemplation of the parties that a loan should be thus effectuated. 3. -- Contract — Several Considerations for Promise — Rule Concerning. — Where there are several considerations recited as the ground of a promise, and any of them be frivolous and insufficient, or illegal, and the others are good and sufficient, then the good may be severed from the bad, and the promise upheld. But if the bad be so connected with the good as to make' the consideration an entirety, and incapable of severance, the whole promise is void. 4. Practice — Pleading — Ratification. — A ratification must be pleaded by the party seeking its protection. And to constitute a ratification, it must appear that the party ratifying knew at the time of the thing alleged to be ratified. On motion for rehearing. 5. Abstract of Record — Rule as to Transcript. — If the parties themselves are not agreed as to whether the abstract correctly represents the state of the record, this court must look to the transcript to determine this agreement.

Appeal from Jasper Circuit Court, Hon. M. G-. McGregor, Judge. Motion for rehearing denied. The case and facts are stated in the opinion of the court. I. If a partnership existed, it was a non-trading partnership. Deardorf’ s Admir v. Thacher ei at., 78 Mo. 128 ; Smith v. Sloan, 19 Am. Eep. 757. II. A partner in a non-trading partnership cannot bind a co-partner by a bill or note drawn or accepted or endorsed by him in firm name, not even for a debt owed by the firm, unless he have express authority from his co-partner, or it is usual or customary in similar partnerships. TJlery v. Geirieh, 57 HI. 538; Deardorf’s Adm'r v. Thaeher, 78 Mo. 128. Authority must be proved affirmatively to sign the instruments, and no inferences will be drawn. Dithman v. Valpry, 10 R. & C. P. 128; Judge v. Branwell, 26 Am. Rep. 128. Therefore, instruction numbered one, asked by the defendant and refused by the court, should have been given. III. The court erred in not giving the instruction numbered three, asked by the defendant, for the reason that no custom as to signing notes being proved, then assuming that Allington and Anderson were partners in washing and cleaning mineral, yet express authority given Allington to execute said instrument, or subsequent ratification thereof by Anderson, must be shown to [bind Anderson. Deardiorf s Adrtir v. Thacher, supra ; Smith v. Sloan, 19 Am. Rep. 757. IV. The instruction in behalf of plaintiff submitted the question of the existence of a partnership, and instruction numbered two, asked by defendant, should have been given, submitting the issue of the character of Anderson’s interest in the property to the jury. No matter how slight the evidence, defendants were entitled to an instruction on it, and the benefit of whatever inference the jury might draw. 45 111. 87; 5 Mo. 513; 42 Ga. 289; Sachett on Instruction, 14. If Anderson participated in profits as a creditor, he is not liable as a partner. Abbott’s Trial Evidence, 212; 69 N. Y. 35. V. Assuming authority proved £ £ to borrow money ’ ’ that does not confer authority to execute a note of All-ington & Company, or any other note. Mechanics Bank v. Schaumburg et al., 38 Mo. 237; Bank of Trenton r>. Gay et al., 63 Mo. 38. When the intention to give authority to execute the instruments sued on cannot be clearly discerned, the agency will not be recognized or implied. Story on Agency [8 Ed.] sect. 87. Authority to execute a note, implied from authority to do a certain other act, is strictly construed. 1 Daniels on Negotiable Instruments [3 Ed.] sect. 292; School Dist. ®. Sippry» 54 111. 287; Bank of Beer Lodge v. Hope Mining Co., 3 Mon. 146 ; 8ewanee Mining Co. v. McCall, 3 Head. 621. YI. The court erred in admitting the instruments in evidence, as the petition described them as notes, and they were but contracts. First Nat. Bank of Trenton . Pomeroy, 13 Mo. 620; Wyatt v. Railroad, 62 Mo. 408. So if based on a partial statement of facts. Mead v. Botherton, 30 Mo. 201; Iron Mountain Bank v. Murdock et al., 62 Mo. 70; Sheedy v. Streeter, 70 Mo. 679 ; E Tlis v. Wagner, 24 Mo. App. 407. III. The other matters embraced in said instructions had been already fully covered and fairly presented in the instructions given by the court in behalf of the respondent and of its own motion. It is not error to refuse instructions which announce principles embodied in those already given, or where those already given correctly declare the law applicable to the whole case. Miller v. Railroad, 90 Mo. 389; State v. Elliott, 90 Mo. 350 ; State n. Jump, 90 Mo. 171; Brooking v. Shinn, 25 Mo. App. 277. The sixth and seventh instructions were given, as asked by appellant, except that the court modified the sixth by adding the final words, “and unless the jury so find, they will find the issues for the defendant, Anderson, on each count of the petition.” IY. The appellant, having availed himself of the benefits of the notes made on his behalf by using the money obtained thereon in the carrying on of the necessary firm business is in equity and good conscience estopped from claiming that Allington exceeded his powers in making the instruments sued on. Ten Broke v. Winn Boiler Compound Co., 20 Mo. App. 19, and cases cited; Brown v. Wright, 25 Mo. App. 54. The rule is well established that a master will be liable on a note executed by his clerk, though without authority, if the money be actually applied to his use. Dunlap’s Paley on Agency, 168. Y. The fact that appellant remained silent after being informed by respondent that his co-partner, Allington, had given the firm notes or exceeded his authority is evidence of assent both prior and subsequent. 1 Bindley on Partnership, 236a, 263/; Reubin ®. Cohn, 48 Cal. 545. The rule is that not only the appointment, but the authority of Allington to give the notes declared on may be implied from the recognition or adoption of his acts by Anderson. Kiley *. For see, 57 Mo. 390 ; Bouthage v. Railroad, 61 Mo. 89. YI. The giving of the notes in controversy was necessary to the carrying on of the firm business, and the money realized was applied to the uses of the firm and in such case express authority is not necessary. Beardorff v. Thaoher, 78 Mo. 129. YII. The authority to borrow the money included the power to give the notes which are sued on here. Bank v. Cay, 63 Mo. 371; McAlpine n. Cassady, 17 Texas, 449. YIIB If the court erred in assuming the instruments declared on to be notes the defendant adopted the same theory and cannot complain. Besides the error* if any, was immaterial. State v. Stewart, 90 Mo. 507; Holmes v. Braidwood, 82 Mo. 610; Fell v. Railroad, 23 Mo. App. 216. On motion for rehearing. I. The appellant’s abstract of the record does hot pretend to set ont the instructions given by the court at the instance of the respondent, nor is the defect supplied by the record of the respondent. Even had the instructions given by the court on behalf of the respondent been presented to this court by the record the judgment would not be reversed on that .ground alone, unless the-appellant had set forth that as an error in his motion for a new trial. II. The motion for a new trial is not set out in the record; hence this court cannot, under its rules and practice, determine whether or not the attention of the court below was called to the instructions complained of. III. This court will not go to the transcript to ascertain what was done in the trial court when appellant’s abstract does not set it out or refer to it. Hans-man v. Hope, 20 Mo. App. 193. The judgment of the lower court was reversed upon the sole ground that the-note contained a clause for an attorney’s fee and that plaintiff recovered judgment therefor. IV. It was contended by counsel for respondent that, inasmuch as the appellant had not preserved in the record the instruments sued on, this court could not consider it, and the court, in its opinion, says, “it is quite manifest from the instructions that the instruments contained some provision for the payment of an additional per cent, on the principal sum, for the court expressly directed the jury to find this additional sum if they found the. issues for the plaintiff.” We respectfully submit that no such instruction appears in either the appellant’s or respondent’s abstract of the record, except the instruction given by the trial court of its own motion, which this court expressly refuses to review, for the reason that no such error was assigned. Y. The same may be said in regard to the pleadings. No question concerning them was raised in the trial court, none presented by the record in this court, or preserved in the bill of exceptions, or urged in this court, and there is nothing to indicate to this court whether the respondent did not count upon subsequent ratification as well as original authority to execute said notes, and no objection was made upon the trial to the introduction of the instrument sued on, because it was not a note, or because of variance between the allegations and the proof. I. Where the error complained of in an appeal from the circuit court is apparent on the face of the record it may be reviewed without the saving of exceptions or the filing of a motion for a new trial. Railroad «>. Mahoney, 42 Mo. 467; Nordmanser v. Hitcheoclc, 40 Mo. 178. All errors apparent on the face of the record, the court will judicially notice. Jones n. Taller, 38 Mo. 363. II. It is apparent from the abstract of record furnished both by appellants and respondent, “ that the trial court treated them (the instruments in controversy) as promissory notes. And it is quite manifest from the instructions (especially those given by the court at the request of plaintiff, and those are the ones reviewed by the court), that the instruments executed by Allington to plaintiff contained some provision for the payment of an additional ten per cent, on the principal sum, for the court expressly directed the jury to find this additional sum if they found the issues for the plaintiff.” And this being so, the court simply holds that upon the facts disclosed by the record, that as a matter of law, no autliority is shown to execute the instruments sued on, as they are not notes. And this court has held that, when no point is made on the pleadings, the effect of the pleadings may be stated in the abstract and that will be sufficient. 23 Mo. App. 82. And we take it that the same rule would extend to the verdict and the judgment thereon, and if no question was raised as to the amount or character of the verdict and judgment, then it would be sufficient to state in the abstract the effect of the verdict and judgment. In this case no point was made by respondent’s counsel as to what the amount of the verdict and judgment was, or what was the character thereof. And the appellant did set out the effect of the judgment, and the character thereof, in the words, “and under the instructions of the court, the jury found a verdict for the plaintiff for the amount of the two notes, interest, and ten per cent, as attorney’s fees.” And from this the court could surely determine that the two instruments were not notes. III. The counsel for respondent, we think,' misconstrues the case of Hansman v. Hope (20 Mo. App. 193). This case, as we understand it, simply holds that where not even the substance of the instruments sued on are set out, or appear in the record or the abstract supplied by appellants that the court will not pass on their legal effect. That is not' this case, for here it appears throughout the record and the abstract furnished by appellant, as well as in the brief of counsel for respondent, what the substance of the instruments sued on was and exactly what the instruments themselves were, to-wit, what is termed promissory notes with an attorney’s fee clause in them. The other case of Goodson v. Railroad (23 Mo. App. 74), only holds that where no abstract of the record and the evidence is filed by the respondent, that the abstract filed by appellant must set out every part of the transcript relied upon as error, and all that is necessary to show it such. That is not this case, for the reason that the respondent filed an abstract of the record, and not only that, but the counsel for respondent assigned as a reason for doing so that they wished to controvert the correctness of the abstract given, by the appellant. We think, therefore, that the rule laid down in the last-mentioned case, would not apply in this case. IY. The appellant did object to the introduction of the instruments sued on in evidence, “because no express authority was shown to execute them.” And we think that the record, as furnished the court by both respondent and appellant, clearly shows that the court below committed error, and, that, therefore, the judgment of this court reversing the case is correct and should be allowed to stand, and the motion for a rehearing overruled.