Hooper v. Bradbury

69 Mo. App. 632, 1897 Mo. App. LEXIS 110

• Court: Missouri Court of Appeals
• Decided: March 9, 1897
• Status: Published

Opinion

Bond, J.

This is a suit on a negotiable note assigned to plaintiff as administratrix, executed by defendant on July 1, 1887, for $800, due five years thereafter, which together with coupon notes for the interest, was payable at the office of the payee in Kansas City, Missouri. Defendant pleaded payment. Prom a judgment in his favor plaintiff appealed to this court.

The circuit judge gave all the instructions asked by plaintiff, except one, to the effect that there was no evidence in the case that the payee had any authority to collect the note. The evidence tended to prove that the plaintiff resided in Exeter, New Hampshire; that the principal note and the several coupon notes for interest thereon, were taken by the payee at Kansas City, Missouri, and made payable there; that some time after their execution they were sold to the plaintiff ; that it was the custom of the investment company, which succeeded to the business of the payee in the note, when it sold notes to eastern parties, to remit to the holders the amount of the interest, so that it would reach them when the notes given therefor fell due; that the holders would then return the interest notes to the investment company, and the latter would collect them. The secretary of the investment company testified that when payments on the note in suit were made the amounts thus received “were credited to her account with the Gossard Investment Company.” It was undisputed that defendant paid to said company the entire principal sum due on the note in controversy. The witness did not recollect whether or not plaintiff was advised of the money thus received on her behalf by the investment company.

Agency: authority agent: inference: jury question. Taking the evidence as a whole, it admits of a, legitimate inference that the investment company was the agent of plaintiff to collect the principal note, as well as the coupon notes. It is confessed that the plaintiff kept an account with the investment company,, and. that the payments on the principal note were placed to her credit in said account. In the absence of any evidence to the contrary, it may be fairly assumed that she was apprised of the existence of said account in her favor. If that inference is indulged, it is evident that the payment to the depositary of the account was a payment to the agent of plaintiff, and plaintiff’s adoption of the acts of the investment company in collecting her coupon notes, before they were due, afforded a reasonable basis for the belief that she w.ould accept, through the same agent, payment of the principal note before its maturity. The evidence shows that the principal note was mostly paid before it fell due. The nature and extent of the authority of an agent may be implied or inferred from the conduct or acquiescence of the principal. Cummings v. Hurd, 49 Mo. App. loc. cit. 145. If the circumstances relied on to establish agency have any evidentiary force, their effect must be determined by the jury. Our conclusion is, that the trial judge did not err in refusing the instruction complained of, and the judgment will therefore be affirmed. It is so ordered.

Judge Biggs concurs in the result; Judge Bland not sitting.