Cannon v. Gibson , 162 Mo. App. 386 ( 1912 )

CAULFIELD, J.

(after stating the facts). — We are unable to discovered any tenable ground on which to sustain this decree. Judge Baskett, as agent for his sister to receive payment of the note, had no authority to receive anything but money in liquidation of the debt. He had no authority to sell or exchange it or to accept the notes of another by way of payment of it. [Tiedeman, Commercial Paper, sec. 375 ; Mechem on Agency, sec. 375; 22 Am. & Eng. Ency. Law (2 Ed.,) p. 522; Smith v. Johnson, 71 Mo. 382.] Nor can her mere failure to communicate her repudiation directly to Gibson and Cannon be considered a ratification of her agent’s unauthorized act. At the most, she was merely silent as to those gentlemen. Now if ratification can be predicated on this mere fact of silence it must be either because it evidenced an intention on her part to ratify or because by it she has estopped herself to deny the authority [St. Louis Gunning Adv. Co. v. Wanamaker, 115 Mo. App. 270, 90 S. W. 737.] For her to have intentionally ratified she must have voluntarily assumed, on full information, the unauthorized act. For her to be estopped, her silence must have led the parties dealt with to in some manner have altered their position for the worse. [Ib.] It needs no discussion to demonstrate that there was no intention on her part to ratify. As soon as she heard of the unauthorized act of her agent she repudiated it to him and directed him to get her money. She has steadfastly maintained this attitude of repudiation ever since and has received no benefits from the unauthorized act. Her failure to directly communicate with Gibson and Cannon was more probably due to mere inexperience than anything else, or a profound conviction of the uselessness of such a proceeding as a means of obtaining any relief. It is equally plain that her silence did not lead any of the parties to alter their position for the worse. None of them did anything whatever to alter his position on the faith of her silence. They had made their trade and completed all their transactions a month before she had any hint of the transaction. She was not estopped by her silence.

But plain&ff argues in effect that by placing the note, endorsed in blank by the payee, in her agent’s hands, and thus giving him the appearance of being the true owner of it with apparent authority to deal with it as he saw fit, she estopped herself to set up the- true ownership against plaintiff, who dealt ivith the agent on the faith of his being the true owner.The language we have just italicized presents the vital part of this proposition of plaintiff in this case. Plaintiff must have dealt with W. H. Baskett on the faith of his being the true owner; and more, before he can invoke the doctrine of estoppel he must have been influenced by such false appearance of ownership to do some act or thing to his injury, which otherwise he would not have done. [Bank v. Burrus, 178 Mo. 716, 77 S. W. 748.] Plaintiff has utterly failed to prove any such thing. On the contrary it affirmatively appears from his own testimony in too clear a manner to be seriously disputed, that he was entirely content and fully intended to rely solely upon Gibson’s obligation under his contract for a warranty deed to clear the land of the incumbrance. Upon any other theory his conduct is inexplicable. He turned over to Gibson the entire consideration for the conveyance before he knew whether Baskett would take Reid’s notes or a cash payment and when for the first time he came' in contact with. Baskett and had an opportunity to see the note he had already done everything under his contract with Gibson which could possibly be injurious to him, and then he would not take the trouble to look at the note and did not look at it, for the reason, as he very frankly testifies, that “the transaction had already been closed.” It is clear that he relied upon Gibson entirely in the transaction, took no part in it and was not misled by anything Elizabeth Baskett did to any extent whatever.

Our conclusion upon the whole ease is that the learned trial court committed error in granting the injunction. The judgment of the circuit court is reversed and the cause remanded with directions to vacate both the temporary and permanent injunction and to dismiss the case at the cost of the plaintiff, respondent here.

Reynolds, P. J., and Ñortoni, J., concur.