Bank of Ravenna v. Dobbins , 96 Mo. App. 693 ( 1902 )

ELLISON, J.

This is an action on a promissory note in which plaintiff prevailed in the trial court.

Defendant’s husband owed the plaintiff a note of $170 secured by chattel mortgage. While this note was running and unpaid he wanted $20 additional. The plaintiff’s president and cashier told him he could Lave it if he would get his wife as security for the whole amount. A note for $190 was prepared to which the husband signed his own and the defendant’s name. He also renewed the chattel mortgage. The cashier supposed that he would take the note • home for his ■wife’s signature and seeing that he signed it himself, he questioned him about it and on receiving his assurance that it was all right he accepted the note with defendant’s name thus signed. The husband afterwards absconded and plaintiff is now seeking to hold the defendant wife as a surety.

Plaintiff’s case is wholly without merit as against this defendant. There is a general attempt to hold her to payment of the obligation by invoking three legal considerations which are effective when there is any evidence upon which to base them. These are estoppel, ratification and previous authority. We may dismiss the two first with the statement that there is not even an appearance of evidence to support either. The cashier’s own testimony shows that he never relied upon any conduct of defendant on which to found estoppel, but on the contrary that he relied on the conduct and assurances of the husband. And as to ratification it was not shown where defendant ever had opportunity for ratification as that term is known to the law.

On the question of previous authority, the case is without legal evidence of any substantial character. It is clear that previous authority in this case must consist in a general agency to sign her name to notes generally, or else in a special authority to sign this particular note. There is no pretense of evidence to show that defendant authorized him to sign her name to this note. The cashier’s wife testified that she once asked defendant “if she knew that Tom had signed her name, to that note at the bank and she says, ‘Tes, and that is not the first one.’ ” That does not prove anything bearing on the issue. It is not denied that defendant knew her husband had signed her name after the act, but knowledge of a wrong which has been perpetrated against one is surely not authority to commit the wrong.

On the issue of general authority to sign defendant’s name to notes generally, the evidence, when , analyzed, is equally abortive. It consisted in showing that the husband had in the course of ten or more years, signed defendant’s name to four notes; and also that when her son by a former marriage wanted to borrow “some money” of the curator of the minor children of such marriage, the son or her present husband offered to sign her name as surety, but the curator refused. In a few days defendant signed her name and remarked that it would have been all right for “Tom” to have signed it. That was about ten years before the signing of the note in controversy.

The next note was given to Hamilton for $12.50. It had defendant’s name signed to it, but she knew nothing of it until her husband left and then she pronounced her signature a forgery and refused to pay. It was compromised by another party whose name appeared thereon.

A few weeks before the date of the note in controversy defendant’s husband signed her name as his surety to one Maring for $80. Maring testified that a few days afterwards he told defendant that her name had been signed by her husband and that she replied that when it came due he could keep the amount of it out of rent which would be due from him to her. She did not say she had authorized the signing. She says she did not and the matter is now in litigation.

Another note of $300 was given to plaintiff’s cashier, individually by defendant’s husband with two sureties, several years prior to the one in controversy. During an absence of her husband while being treated for insanity, one of the sureties became uneasy and on defendant being notified of it, she gave her check for $100 and a new note for $200 by signing her husband’s and her own name. It was not shown who paid it.

The remaining note, the giving of which was proved by plaintiff in order to establish a general agency, was for $31.50. The money was borrowed of the plaintiff bank after the date of the note in controversy and the defendant gave her husband direct authority to sign her name as surety and she afterwards paid the note.

The Only thing of substance in all this, to prove that defendant gave any authority to her husband is that last recited; and it fails for one good reason if for no other. It is one special act of authority in a disconnected transaction, to sign defendant’s name to one designated note. Such, isolated act is not proof of a general agency. The evidence, as a whole, totally fails to make a case.

The authorities on the subject of agency and the necessary proof thereof, and what character of evidence is sufficient, will be found collected in defendant’s brief. Our conclusion as to the evidence renders it unnecessary to go into objections presented to the instructions. The judgment will be reversed.

All concur.