Chouteau, Harrison & Valle v. Filley ( 1872 )

Adams, Judge,

delivered the opinion of the court.

The evidence in this case conduced to prove the following .facts: That the defendant was a merchant in St. Louis, engaged in the tin business, and had been in this business for some twenty years; that L. D. Roberts was his clerk, authorized to do any act in the name of the defendant in connection with this business, and was duly authorized as such to receive and indorse drafts for collection and deposit on account of such business ; and any draft drawn in favor of the defendant on account of this business the said Roberts was authorized to indorse by signing the defendant’s name on the back of the same by himself, as agent.

The evidence conduced to show that John How, without the consent of defendant and without his knowledge, obtained from the plaintiffs their draft payable to defendant, in these words :

“ Office of Chouteau, Harrison & Valle, )

“ St. Louis, April 17, 1869. >

“No. 361. State Savings Association pay to O. D. Filley fifteen hundred dollars. $1,500 cy. JOHN BOGGS, Sec’y.”

That How took this draft to the business house of defendant, on Main street, and not finding the defendant there, handed it to Roberts, who, without defendant’s knowledge or consent, indorsed it “O. D. Filley, per Roberts,” and handed it back to John How, who thereupon obtained the money upon it. The plaintiff did not owe defendant anything at.the time. The draft was drawn by the plaintiff as a mere matter of accommodation, without the knowledge or consent of defendant, and the proceeds of the draft did not go to the defendant or into his business, but went into the hands of How, who procured the draft as above stated from plaintiff.

This action was brought for the $1,500 and the interest, as for money loaned or advanced by the plaintiff to defendant. Judgment was given for the defendant, and the plaintiff appealed to the General Term, and the judgment being affirmed, the plaintiff has brought his case here by appeal.

The plaintiff asked several instructions, which were refused, based upon the presumption that the evidence conduced to show that Roberts, as defendant’s clerk, had authority to indorse this particular draft. The defendant asked counter-instructions, which were given by the court.

The only question presented by the record is whether there was any evidence to warrant the presumption that Roberts had authority to indorse this draft. The draft had no connection whatever with the defendant’s tin business. It must have been intended by the plaintiff as a loan to defendant for the benefit of How, or to be reloaned by defendant to How. But the defendant had no knowledge or information whatever of the transaction, and never gave his consent to it; nor did he ever ratify it in any manner. So the question occurs, did Roberts have authority to borrow money in the name of defendant for the purpose of loaning it out ? Could he, under his general authority to transact all business connected with the tin establishment, indorse such a draft so as to make his employer responsible for the alleged loan? Roberts was the general agent of the defendant within the sphere of his employment, but he was not an unlimited agent. His agency was limited to matters connected with the tin business. He could not indorse such a draft, so as to bind his employer without his consent, for the return of money which did not go into the tin business and was not intended to be put there.

We see no error in the rulings of the Circuit Court. Judgment affirmed.

The other judges concur.