Opinion
April 28, 1943.
1. — Appeal and Error. The Court of Appeals has duty to determine its appellate jurisdiction, notwithstanding that such jurisdiction is not challenged.
2. — Courts. Where plaintiff-appellees sought to cancel a valid deed of trust and a decree that note was paid, and foreclosure of deed was enjoined, "title to real estate" was not directly involved and therefore Springfield Court of Appeals, and not Supreme Court had appellate jurisdiction.
3. — Appeal and Error. Where defendant-appellants filed a certified copy of order granting their appeal and their abstract stated that "all necessary steps" had been taken to effect an appeal, and plaintiff-appellees had made no contrary showing, motion to affirm the judgment because appellants' abstract failed to show that they had saved an exception to the overruling of motion for new trial and that the bill of exceptions had been signed by trial judge was overruled. Rules of the Springfield Court of Appeals, Rule 32.
4. — Appeal and Error. Exceptions need not be taken to the overruling of a motion for new trial, where proper exceptions were taken during the trial.
5. — Estoppel. When a loss must be sustained by one of two innocent parties, the one whose negligence made the loss possible must suffer, rather than the other.
6. — Principal and Agent. Where plaintiffs, after purchasing realty subject to trust deed of their predecessors, executed note and deed of trust to predecessors' grantor and plaintiffs made payments on note to such grantor's agent without production of note, because agent had previously had real authority for such grantor over the predecessors' notes and had managed the deal by which plaintiffs had secured title, plaintiffs were negligent, and as between innocent parties, plaintiffs and not predecessors' grantor were required to suffer the loss from agent's failure to deliver the payments to such grantor.
Appeal from the Circuit Court of Butler County. — Hon. Robert I. Cope, Judge.
JUDGMENT REVERSED AND CAUSE REMANDED ( with directions).
C.T. Bloodworth for appellants.
There is no sufficient evidence to support the findings and decree of the court and the undisputed evidence entitles the defendant, Charles Raysigl, to a judgment in his favor for the amount of the $400 note with accrued interest from its date, a foreclosure of the deed of trust by the court, and the land ordered sold to pay the amount of the note. Maguire et al. v. Donovan et al., 84 S.W. 156; McDonald et al. v. Smith, 206 S.W. 591; 8 C.J., 603.
Phillips Phillips for respondents.
(1) The defendant, Raysigl, certainly gave his agent, T.B. Morgan, the right to sell the notes involved in this action and to collect for the same, by endorsing twenty-five of said notes and delivering them to Morgan, writing the letter to "Whom It May Concern" (stating therein that he had sold the notes and deed of trust to him), and then executing and delivering to him a power of attorney. (2) The clause of the power of attorney that gave Morgan the right to sell the notes, collect the same or any part thereof, or the interest due thereon "In any manner that he shall see fit and think convenient" would have authorized Morgan at the time of the sale of the notes to the plaintiffs to have collected the entire consideration in cash. He was authorized to collect the whole, or any part of said notes in any manner that he thought proper and convenient and he agreed with Lee on the manner of collecting the notes for Raysigl. (3) If Morgan was authorized to collect the $1800 if it was paid in cash, and if he had authority to determine the manner in which the $1800 could be paid, there was nothing to keep him from accepting the $1400 in cash and then afterward accepting the deferred payment when it was made. (4) It was conceded at the trial that the plaintiffs have acted in good faith throughout this transaction, and they have now paid and tendered the entire purchase price, together with accrued interest and cost of releasing the deed of trust against their land. After Morgan's statements to him that he was the general agent of Raysigl and after seeing and reading the documents above referred to, and in view of the fact that Morgan had the same in his possession, the plaintiff was justified in believing that he had a right to pay the purchase price of the notes to Morgan. If it should be true that the defendant and the plaintiffs are all innocent parties, and that one of them stands to lose by the wrongful acts of Morgan, then the law provides that the one who placed Morgan in the position to do the wrongful act should stand the loss; and that person, beyond any question of a doubt, is the defendant, Raysigl, who appointed Morgan his agent, gave him the power of attorney, endorsed the notes and delivered them to him. Kuraner v. Columbia Nat. Bank, 90 S.W.2d 465, 230 Mo. App. 358; M. M. Securities Co. v. G.M.A. Corp., 79 S.W.2d 521, 230 Mo. App. 900; Neuhoff v. O'Reilly, 93 Mo. 164; Williams v. Butterfield, 114 S.W. 13, 214 Mo. 412; St. Charles, etc., Bank v. Edwards, 147 S.W. 978, 243 Mo. 553; Maupin v. Mo., etc., Ins. Co., 214 S.W. 398; B.F. Goodrich, etc. v. Bennett, 281 S.W. 75; Goddard Grocer Co. v. Freeman, 127 S.W.2d 759; Leonard v. Shale, 181 S.W. 16, 266 Mo. 123; Baade v. Cramer, 213 S.W. 121, 278 Mo. 516; Fairgate Realty Co. v. Drozda, 181 S.W. 398; General Motors A.C. v. Holland, 30 S.E.2d 1087. (6) Defendant Raysigl, when Morgan was dealing with innocent third persons, was bound not only by the actual authority he had given him, but he was bound also by Morgan's apparent authority. A party dealing with an agent has a right to rely in good faith upon his apparent authority, whether such agency is general or special. McNichols v. Nelson, 45 Mo. App. 446; Hackett v. Van Frank, 105 Mo. App. 384; Plummer v. Knight, 137 S.W. 1019, 156 Mo. App. 321; Gilmore, etc. Corporation v. Leinard, 9 S.W.2d 862; Koewing v. Green Co., etc., 38 S.W.2d 40, 327 Mo. 680; Gilstrap v. Osteopath, etc., 24 S.W.2d 249, 224 Mo. App. 798. (7) Where an agent has general authority to place loans, such agent has full authority to collect them, whether he has the note and mortgage in his possession or not. Mumford v. Knox, 50 Mo. App. 356. (8) Morgan by the power of attorney, the endorsement of the notes to him, and the letters introduced in evidence, was authorized to receive payment on the whole or any part of the amount collected on the notes, or the whole or any part of the amount for which they were sold. Johnson v. McGruder, 15 Mo. 365; Rice v. Graffmann, 56 Mo. 434; Norrid v. Garner, 182 S.W. 1025. (9) In order to decide this case it is not necessary for the court to adjudicate the question of whether or not Raysigl should pay Morgan for valuable services that Morgan performed for him. All the court has to determine from the facts and circumstances is whether or not Morgan had the apparent authority to receive and accept the deferred payments that were made to him by the plaintiff. (10) The plaintiff, in making the payments to Morgan had a right to presume, until contrary information was brought to his knowledge, that the power and authority given Morgan by the power of attorney, endorsed notes, letters, etc., still continued and existed at the time he made the payments. Authority of an agent or employee, once shown to exist, is presumed to continue, until the contrary is shown. Graham v. Frisco Ry., 273 S.W. 221; Sisk v. Ins. Co., 95 Mo. App. 695; 2 C.J. 623; Whelan v. Reilly, 61 Mo. 566; Jolly v. Huebler, 132 Mo. App. 675, 112 S.W. 1013; Dawson v. Wombles, 111 Mo. App. 532; Federal Bank, etc. v. Alger, 22 F. Supp. 168; DeWolf v. Church, 67 P.2d 930; Sinclair, etc. v. Farmers Bank, 91 S.W.2d 122. (11) The judgment of the trial court should be affirmed because appellant's abstract of the record does not show the saving of an exception to the overruling of the motion for a new trial and hence all that can be reviewed by this court is the record proper. Plaintiff's petition states a cause of action, the judgment is in proper form, and motion in arrest was filed. State v. Jeffords, 64 S.W.2d 241; Hopkins v. A. L. Dunn, etc., Co., 85 S.W. 907; Menke v. Farmers, etc., Assn., 101 S.W.2d 508; Stevens v. Williams Art Co., 211 S.W. 711; Matthews v. Jones et al., 199 S.W. 579. Appellant cannot now amend his abstract after the filing of the motion calling the court's attention to the defect in his abstract. LeClair v. LeClair, 77 S.W.2d 865; Hopkins v. A. L. Dunn Co., supra; Lane v. Lane, 17 S.W.2d 584; Wright v. Insurance Co., 122 S.W.2d 375. The abstract of the record fails to show that it was signed by the trial judge. This leaves only the record proper for consideration. Williams v. Railroad Co., 223 S.W. 132; Lanham v. Civic Theatre Corp., 147 S.W.2d 675.
The appellate jurisdiction of this court was not challenged by appellants or respondents in argument or brief. Notwithstanding, we have the duty to determine such jurisdiction for ourselves.
The only question which could possibly deprive this court of appellate jurisdiction is this: Is the title to real estate involved within the meaning of the Constitution? The note and deed of trust were valid when executed. Foreclosure of the deed of trust was enjoined because of the alleged payment in part of said note and tender of the balance due before such injunction suit was filed. It was sought in this suit to cancel the deed of trust and for a decree that the note was fully paid.
We have concluded that title to real estate was not directly involved and that we therefore have appellate jurisdiction. [Meredith v. Pound (Mo.), 92 S.W. 698; Brutcher v. Fitzsimmons, 343 Mo. 547, 122 S.W.2d 881; Peters v. Kirkwood, etc., Assn., 344 Mo. 1067, 139 S.W.2d 507.]
Before considering the merits of the appeal we will take up plaintiffs' (respondents') motion to affirm the judgment below, because appellants' (defendants') abstract fails to show that the appellants saved an exception to the overruling of their motion for new trial, and further, because the abstract of appellants fails to show that the bill of exceptions was signed by the trial judge.
It is the contention of the respondents in said motion, and under Point (11) of their brief here, that there is nothing before this court but the record proper and, since the plaintiffs' petition states a good cause of action, the judgment of the trial court should be affirmed on the record.
On page 25 of the appellants' abstract, the following appears:
"On the same day, the Motion for New Trial was overruled, affidavit for appeal filed, and appeal granted with 90 days allowed to prepare and file a Bill of Exceptions, and appeal bond duly filed and approved, and all necessary steps to be taken to effect appeal in this cause were duly taken within the time and manner provided by law, and (t)his Bill of Exceptions was duly filed and made to constitute a part of the record in this cause." (Letter in parenthesis ours.)
Appellants have filed their certified copy of the order granting them an appeal. Appellants' abstract states that "all necessary steps" were taken to effect an appeal, including the filing and allowance of a bill of exceptions, and respondents have made no contrary showing. Therefore, under Rule 32 of this court, respondents' motion to affirm the judgment of the trial court must be overruled.
We might add that our Supreme Court has recently held that exceptions need not even be taken to the overruling of a motion for a new trial, where proper exceptions were taken during the trial. [State v. Wolzenski, 340 Mo. 1181, 105 S.W.2d 905.]
Proceeding now to the merits of the appeal, there seems to be no dispute about the following facts: The suit in Ripley county was filed by respondents, as plaintiffs, against appellants, as defendants, for an injunction to prevent foreclosure of a deed of trust on the real estate, which it is unnecessary to describe here. The deed of trust was valid when given and was in regular form to secure the payment of a note for $400 to Charles Raysigl, due in one year from date thereof, with interest at five per cent from date and signed by respondents Lee and wife. Respondents pleaded that they paid part of said note to one Morgan, claimed by them to have been the apparent agent of appellant Raysigl, and made a legal tender through a bank to appellant Raysigl of the balance, in sufficient amount to cover interest and costs of releasing the record of the deed of trust. There is no question that plaintiffs in good faith believed such payments were proper. Appellants pleaded that T.B. Morgan, who received the payment from respondents, had no authority, real or apparent, to receive such payments from respondents. The note was not in the possession of said Morgan at the time of such payments and he had no actual authority to receive such payments at all, as the note was not due at the time of such payments and said note was actually in Ohio at the time and was not in the possession of said T.B. Morgan at any time, after he sent it to appellant Raysigl, and such matter was not covered by the power of attorney hereinafter set forth.
The sole question in the case is this: Did T.B. Morgan have apparent authority to receive such payments from the makers of said note and thereby to bind appellant Raysigl?
The circuit court, on transfer of the case to Butler county, held that said T.B. Morgan had such apparent authority and enjoined the sale under said deed of trust, and defendants in said case appealed to this court.
Whatever apparent authority was possessed by said T.B. Morgan must be gathered from the previous conduct of the parties and the language used in the following power of attorney, to-wit:
"KNOW ALL MEN BY THESE PRESENTS:
That I, CHARLES RAYSIGL, of Cleveland, Ohio, have this day made, constituted and appointed T.B. MORGAN, of Poplar Bluff, Butler County, Missouri, and do by these presents, make, constitute and appoint the said T.B. MORGAN, of Poplar Bluff, Butler County, Missouri, my true and lawful attorney, for me, and in my name, to sell and dispose of, absolutely, my personal property, consisting of notes made to me, and executed by one Eugene W. Utley and Eva Utley, his wife, said notes being secured by deed of trust on certain real estate lying, being and situate in Ripley County, Missouri, secured by a deed of trust recorded at Page 290 of Book 108 of the deed records of Ripley County, Missouri, 27 notes, of $100.00 each, and to collect the same, or any part thereof, or the interest due thereon, in any manner or way he shall see fit, and think convenient; also, for me, and in my name and behalf, to do such things or take such action as may be, in his opinion, necessary to protect my interest as the owner and legal holder of said notes secured by said deed of trust; and also, for me, and in my names and behalf, to do such things or take such action as may be, in the opinion of the said T.B. MORGAN, necessary to protect my interest as party to a certain contract made and entered into by me with Eugene W. Utley, on the 15th day of May, 1937, for which purpose I hereby make, constitute and appoint the said T.B. MORGAN as my true and lawful attorney."
It seems that the same real estate was formerly sold by appellant Raysigl to one Eugene W. Utley and said Utley and wife had executed notes and deed of trust to said appellant, and said Utley thereafter sold the real estate, subject to such encumbrance, to his brother and the brother sold the property to respondent Sam M. Lee, subject to the same encumbrance, and Lee and wife executed the deed of trust to appellant Raysigl. It was these notes and deed of trust given by the first Utley which were described in the power of attorney. Respondent Lee gave $1400 in cash and certain liens on the property were removed, and he and his wife executed the note for $400 to appellant Raysigl for the balance, which is involved in this case. Said Morgan was authorized by such power of attorney to do whatever was necessary to protect appellant Raysigl with respect to said Utley notes and the contract made with said Utley. Nothing whatever was said in the power of attorney about the note or deed of trust given to appellant Raysigl by respondents Lee and wife.
The apparent authority of Morgan was gathered from the facts that the second Utley and wife made a deed directly to respondent Lee and said Morgan was to collect the twenty-seven first Utley notes. These notes were afterwards cancelled and the deed of trust securing them was released. The conduct of Morgan with regard to the sale of the property to respondent Lee and the execution of the notes and deed of trust by respondent Lee and wife were the only dealings Morgan ever had with said Lee note and deed of trust. Such course of dealing was wholly with respect to the sale of and payment for said real estate.
We must confess that the steps taken to get the title in respondent Sam M. Lee, subject to the deed of trust securing the $400 note to Raysigl, were somewhat involved; but there can be no doubt that, out of such steps, respondent Sam M. Lee became the owner of said real estate and had the right to and did execute a valid note to appellant Raysigl, due in one year with five per cent interest from date and that such deed of trust securing the payment of said note was recorded and both the note and recorded deed of trust were sent to appellant Raysigl by Morgan long before any money was paid to Morgan by respondent Lee and were never returned to Morgan and were both in the State of Ohio when Lee made both payments to Morgan.
Respondent Lee admitted that he had a copy of the power of attorney heretofore set out and had seen the original, before he ever closed the deal for the purchase of the real estate and therefore before he paid any money to Morgan, and must have known the limitation on Morgan's authority. There is no word in the power of attorney which gave Morgan any authority to act for appellant Raysigl in any matter, except the Utley notes and deed of trust. The $250 note, said by Morgan to have been given by Raysigl and the signature to which was denied by Raysigl, was long before the note for $400 was executed by respondent Lee and wife, if that was a matter of any importance. Morgan was, at that time, acting for and the agent of Raysigl only with respect to the Utley matter.
Respondent cites cases to the proposition that, when a loss must be sustained by one of two innocent parties, the one whose negligence made the loss possible must suffer, rather than the other. Respondents cite those cases on the theory that appellant Raysigl was negligent; but those cases, in our opinion, apply to appellant Raysigl, rather than to respondent Lee, because Lee paid the money to Morgan without the production of such note, merely because Morgan had previously had authority over the Utley notes and had managed the deal by which respondent Lee secured the title. If anyone was negligent, we think it was respondent Lee, rather than appellant Raysigl. We are unable to find evidence which tends to show any authority, certainly not real and not sufficiently apparent, on the part of Morgan to represent appellant Raysigl in the collection of the Lee note for $400. Lee made two payments to Morgan in evident good faith; but he made such payments at his peril and took the chances of such payments ever getting into the hands of appellant Raysigl and being properly credited on his note. As Morgan did not pay over such moneys to appellant Raysigl, but kept them himself, respondent Lee, who himself was grossly negligent, in not insisting on the production of the note and credit thereon, must suffer the loss, rather than appellant Raysigl, the owner and holder of the note involved here. The note was negotiable and might have been assigned to and owned by some third person, and we cannot imagine any defense to the note in such a case.
We must not be understood as passing in any way upon any claim respondent Lee may have against Morgan, on account of the payment to him of said money, or any claim Morgan may have against appellant Raysigl for previous services. Those matters are not involved here. We only hold that appellant Raysigl cannot be in anywise liable to respondent Lee for any money paid by respondent Lee to Morgan, in the absence of a sufficient showing of any authority, real or apparent, on Morgan's part to receive such payments for appellant Raysigl.
It is therefore our order that the judgment be reversed and the cause remanded to the Circuit Court of Butler County, with directions to that court, in response to the answer filed in said court, to enter judgment for defendant Raysigl, one of the appellants here, against plaintiffs Lee and wife, respondents here, for the face of said note and interest from date thereof at five per cent per annum, and that such judgment be decreed to be a first lien upon the real estate described in the petition, in favor of defendant Charles Raysigl, and that the real estate described be sold under said deed of trust, if judgment and costs be not paid by plaintiffs in full within ten (10) days after said cause reaches the Circuit Court of Butler County. Smith and Fulbright, JJ., concur.