West Publishing Co. v. Corbett , 165 Mo. App. 7 ( 1912 )

CAULFIELD, J.

(after stating the facts). — I. Defendant contends that his declaration in the nature of a demurrer to the evidence should have been givgn. There is no serious controversy but that he was indebted to the plaintiff for the books, and if there was such controversy there was sufficient evidence to sustain the finding against defendant on that issue. The existence of the indebtedness being established, the burden of proving its payment or extinguishment was upon the defendant. Defendant does not assert that there was payment in money, but claims that the taking of the twelve dollar note by plaintiff’s attorney operated as a payment of the pre-existing indebtedness, and this conclusively, as matter of law. This position of defendant cannot be upheld for two reasons. (1) An agent for the collection of an account, such as the proof shows, plaintiff’s attorney was, cannot, without explicit authority, receive anything blit money in liquidation of the debt, or bind his principal by any agreement short of an actual collection and receipt of the money; if he receive anything else, such as the note of the debtor, in payment, the debtor is not discharged, unless the action of the agent is ratified by his principal. [Tiedeman on Commercial Paper, sec. 375; Mechem on Agency, sec. 375; 22 Am. & Eng. Ency. Law (2 Ed.), p. 522.] The burden of proving such authority or ratification was upon the defendant, he being the one asserting it. The evidence here disclosed that the attorney or agent had the account in hand merely for collection and therefore, as we have seen, he had no implied authority to receive defendant’s note in payment. He supplemented the legal inference in that respect by testifying positively that he had no such authority. There is no evidence whatever of ratification. The attorney testified that he did not turn the note over to his principal, the plaintiff, and there is not a scintilla of evidence that the plaintiff or its proper officers ever heard of the note until the cause was on trial in the circuit court. In this state of the record the trial court was justified in ignoring the note altogether in making its finding and rendering judgment. (2) The giving of the note could not operate as a payment of the pre-existing indebtedness in the absence of an express agreement between the parties that it should so operate, and the action might still be maintained on the original indebtedness. [Chorm v. Zollinger, 143 Mo. App. 191, 195, 128 S. W. 213; Harvesting Co. v. Blair, 146 Mo. App. 374, 124 S. W. 49.] The burden was upon the one seeking to defeat a recovery on the original indebtedness, the defendant in this case, to prove such express agreement. [Harvesting Co. v. Blair, supra.] The defendant testified that there was such an agreement with the plaintiff’s attorney, but the latter gave testimony to the contrary effect. The trial court found generally against the defendant. Even if the attorney had been authorized to make the agreement such finding upon conflicting testimony would negative the fact that he did make it.

Under, this head the defendant also invokes the rule that although a promissory note does not extinguish the original cause of action for which it was given, without a special contract imparting to it that effect, yet it is so far regarded as a payment, that the party to whom it has been given cannot recover on the original canse of action without producing’ the note on the trial and cancelling it or accounting for its non-production. [Steamboat Charlotte v. Lumm, 9 Mo. 63.] If this rule was applicable under the facts and circumstances of this case, the nonproduction of the note was sufficiently accounted for by the showing that it was lost or destroyed. But we are of the opinion that it would be unreasonable and unlawful to require the plaintiff to account for the nonproduction of a note which, so far as the evidence discloses, was taken without its prior authority or subsequent ratification or knowledge. The declaration of law offered by the defendant in the nature of a demurrer to the evidence was properly refused.

II. Nor do we believe that the court erred in refusing the declaration of law No. 2 offered by the defendant. That declaration would compel the plaintiff to produce and cancel the note or account for its nonproduction regardless of whether the plaintiff had authorized or ratified the taking of the note and without any evidence of such authority or ratification. It was, therefore, erroneous under the view we have already expressed.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.