Rhea v. Buckley Custom Shirt Manufacturing Co. , 81 Mo. App. 400 ( 1899 )

BLAND, P. J.

Plaintiff began this suit; before a justice of the peace by filing the following petition, together with a copy of the note described in the petition:

“PETITION:

“Mary P. Rhea, Plaintiff,

v.

Buckley Custom Shirt Manufacturing Company. (Corporation), Defendant.

“Before ¥m. J. Hanley, Justice of the Peace, Eighth District, City of St. Louis, Mo.

“Plaintiff for cause of action states that defendant is a corporation, duly organized under the laws of the state of Missouri; that on the Yth day of November, 1894, by its negotiable promissory note of that, date, by it duly executed at the city of St. Louis, in the state of Missouri, promised for value received, to pay to the order of one George H. Rhea, Jr., July 9, after said date of November Y, 1895, the sum of three hundred ($300) dollars; that thereupon and before the maturity of said note, said George IT. Rhea indorsed the same in writing, across the back thereof, and delivered same to plaintiff for value, whereby plaintiff became the owner of said note, and entitled to the payment of the amount mentioned therein, said note is herewith filed and marked Exhibit AT

“Plaintiff states that she is still the owner of said note, and that the same has long since matured and become payable but that no part thereof has ever been paid; wherefore plaintiff prays judgment for the sum of three hundred dollars, together with interest at seven per cent per annum, from the Yith day of November, 1894, the date of said note.”

The defense was payment. Erom the justice’s court the cause was taken by appeal to the circuit court, where on a trial de novo judgment was recovered by plaintiff, from which defendant duly appealed to this court.

The cause was tried in the circuit court without a jury. No exceptions were taken to the admission or rejection of testimony on the trial. No declarations of law were asked or given, and the case is here for review on the record proper and evidence only.

Erom the evidence it appears that on July 9, 1894, the respondent had $1,000, which she trusted to her brother Geo. IT. Rhea, Jr., to loan at interest for her. Her money was deposited in the Union Trust Company of St. Louis. To enable her brother to effectuate the loan, she drew her cheek payable to herself on the Union Trust Company, indorsed it in blank, and in this condition delivered it to him; he in turn delivered it to the appellant and took from it its two promissory notes for $500 each, due in six and twelve months, with interest, payable to himself and dated July 9, 1894. The first of these notes was paid at or before maturity to Geo. IT. Rhea, Jr., and the money turned over by him to his sister. On November Y, 1894 and before the maturity of the second note, plaintiff asked her brother to see defendant and ask for a payment of $200 on the second note. George went to defendant and represented to its officers that he had an- opportunity to make a profitable investment in some real estate and asked for the payment of $200 on the note, as an accommodation to him. Defendant acceded to the request, paid him the $200 and interest due to date and executed and delivered to him the note in suit. George delivered the $200 to his sister and informed her that he had deposited the $300 note in the Commercial National Bank for her. Afterwards in June, 1895, she went to the bank, found the note there and took possession of it. At no time did George Ehea disclose to the defendant that he was representing his sister in any of his dealings with the appellant in regard to the loan or the payments thereon. In 1892, George H. Ehea was for a time in the employ of defendant as bookkeeper, and from time to time thereafter sold ■the goods of defendant on commission, and in November, 1894, after the execution of the note in suit he sold some goods for defendant on commission in the city of St. Louis. In January, 1895, under an agreement made with the defendant, he went to the state of Colorado for the purpose of selling its goods 'on commission, and remained there until the following May. During his stay in Colorado it seems he had poor success in earning commissions, and from time to time drew upon the defendant for money. The defendant honored his drafts, letters and telegrams for money, charging the same against commissions earned and to be earned by Ehea, and against the $300, note not yet due. On March 25, 1895, the sums advanced to him exceeded by several hundred dollars both his commissions and the note, and on that date defendant wrote him. stating the condition of his account, and asking him to send in the note. In answer to this request Ehea answered in part as follows: “Note referred to against the company is intact and in the safe deposit vault, the key'to which I have with me., Will willingly return same to you as soon as I can reach it. If yon want it at once will return key to my sister and ask her to deliver same to you if the company will allow her to go into my box. In any event you may rest assured that you will receive same.”

On March 21, 1895, respondent with a telegram from her brother asking a deposit of $20 to his credit in a St. Louis bank, 'went to defendant and requested it to make the deposit to tire credit of her brother. Defendant’s secretary testified that at this time he told plaintiff that Rhea had overdrawn his account and the amount of the $300 note, and that plaintiff made no claim to the note, nor disclosed the fact that the note belonged to her or was in her possession or under her control. She denied that any such conversation took place. A few days after the maturity of the note payment was demanded and refused.

Appellant’s contention here is, that the respondent sued on one cause of action, and was permitted to recover on another and different one; and second, that she is bound by the payments made to George H. Rhea, Jr., her agent; and third, that under the undisputed evidence the verdict should have been for appellant.

(1) A plaintiff can not sue upon one cause of action and recover on a different one, though the latter is supported by the evidence. Chitley by next friend v. Railroad, 48 S. W. Rep. 870. ' But this rule has no application to this case. Section 6138, Revised Statutes of 1889 provides that “no formal pleadings upon the part of either plaintiff or defendant shall be required in a justice’s court” * * * “the plaintiff shall file the instrument sued on.” * * * The plaintiff instead of'filing the instrument sued on, was permitted to file a copy thereof and the petition as the foundation of .the suit. No objection was made to the filing of a copy in lieu of the original note. It was the note (represented by the copy), that furnished the foundation of the suit and not the petition; the latter was not necessary and was unauthorized by the section of the statute, supra, and should be ignored.

(2) If George H. Rhea, Jr., had been the owner of the note, unquestionably the moneys advanced to him would have been, available as an offset or as a payment, in a suit by him on the note. They are likewise available against the respondent if at the times they were made the appellant had no actual knowledge of the agency, nor was possessed of such information thereof, as to have reasonable grounds to believe that George was the agent of his sister. Henderson v. Botts, 56 Mo. App. 141; Mechem on Agency, sec. 773; Peal v. Shepard, 58 Ga. 365; Bernhouse v. Abbott, 46 Am. Rep. 789. There is no evidence that the appellant had actual knowledge of the agency. But such knowledge in the possession of appellant as would cause an ordinary prudent person to believe that George was the agent of his sister, was equivalent to actual knowledge of the agency. Mechem on Agency, 772; Hugan v. Shorb, 24 Wend. 458; Childers v. Brown, 68 Ala. 221; Frame v. Coal Company, 97 Pa. St. 309; Larkin v. Prewitt, 105 N. Y. 394; White Sewing Machine Company v. Betting, 46 Mo. App. 420.

The check of respondent delivered to the appellant on the making or the loan; the known financial standing of George Rhea, Jr.; the improbability that he would have so much as $1,000 to loan were facts known to appellant, and tend to prove that its officers were possessed of such knowledge as to cause them to believe that he was the agent of his sister. The trial court evidently so found, as upon no other theory of the evi-, deuce can the verdict be supported. With this finding this court is powerless to interfere, even were it disposed to do so. Waddell v. Williams, 50 Mo. 216; Tucker v. Railroad, 54 Mo. 177; Miller v. Breneke, 83 Mo. 163; Sebree v. Patterson, 92 Mo. 451; Simpkins v. Simpkins, 22 Mo. App. 25; Green’s Bank v. Wickham, 23 Mo. App. 663; Zervis v. Understall, 29 Mo. App. 474. It follows that the judgment; must be affirmed.

All concur.