Howcott v. Kilbourn

Cockrill, C. J. Howcott brought suit against the appellee on a note signed “L. A. Kilbourn, pr W. I. Kilbourn.” There was an answer of non est factum, and the issue was as to W. I. Kilbourn’s authority to execute the. note. No attempt was made to show express authority for that purpose, but W. I. and L. A. Kilbourn were husband and wife, and the testimony tended to show that the wife was in business for herself, as planter and merchant, in Louisiana, and that the husband transacted most of the business. Mrs. Kilbourn bought supplies from the plaintiffs for her plantation and store; and her husband, to settle the account, signed her name to the note sued on. He stated, at the time, that he had full authority to make the settlement and execute the note. The court, by consent, tried the case without a jury, and declared the fact to be that W. I. Kilbourn acted without authority in executing the note in his wife’s name, and gave judgment for the appellee. It may be admitted for the purpose of this appeal that the proof shows that Mrs. Kilbourn was a sole trader, within the meaning of the statute, and that proof of coverture could not avail her as a defense; for even if she could be held bound for her contracts in an action at law, we can not disturb the finding of the court on the question of the husband’s want of authority to bind her. 1. agency: ’ The fact that W. I. Kilbourn was the husband of the defendant in the suit, did not dispense with the necessity of proving his authority to act as agent in the conduct of her business, or make his statements about his authority to act proof of that fact. % Whart. Fv., sec. 1%14- His declaration could not be heard to prove the agency (Flynn v. State, 43 Ark.), and, aside from what he said about it, the proof is shadowy. It was not sufficient to satisfy the circuit judge, whom the parties elected to put in the place of a jury, either of a general or special agency. It was clearly insufficient to sustain the plaintiff’s case, when we consider the bearing of the Louisiana statute on the subject. The parties all resided in Louisiana, and the note was purely a Louisiana contract. The question, then, whether there has been a contract made that is binding on the appellee, is to be governed by the law of that State. 2. Lex Contracts, The appellee proved on the trial by the introduction of the Civil Code of Louisiana, that a mandate to execute a promissory note for another in that State, must be “express and special.” By a long line of decisions in that State, it is established that the authority to execute a promissory note for another cannot be implied from a power of general agency unless the execution of the note is absolutely necessary to carry out the purpose of the agent’s appointment. The words “express” and “special” are said to be used in the statute in contradistinction to “implied” and “general.” Nalle v. Higginbotham, 21 La. An., 477; Robertson v. Levy, 19 Ib., 327; Decongé, v. Forgay, 15 Ib., 37; Nugent v. Hickey, 2 Ib., 358. Matters bearing upon the execution, the interpretation and validity of a contract, are to be determined by the law of the place where it is made. This is true as to the formal making of the contract. Wharton Confl. Laws, sees. 401, 419; Story Confl. Laws, secs. 242 a, 267. If it be admitted that the proof shows that W. I. Kilbourn was the general manager of the appellee’s business, it cannot be implied from that, under the Louisiana law, that he was authorized to execute a note for her, in settlement of an account due a commission merchant with whom she was no longer doing business. It would serve no useful purpose to consider the decíarations of law made by the court, as there could not in any event have been a judgment for the appellant. The motion for a new tidal does not assign error as to any declaration of law by the court, but alleges merely in this connection that “the judgment is contrary to law.” This assignment is too general under the decisions of this court to raise the question of the correctness of the declarations of law made by the Circuit Court. Ferguson v. Ehrenberg, 39 Ark., 420, and cases cited. 3. motion Teiae: mentofer- We take it that it was intended to mean only that the finding of facts was inconsistent with the declarations of law. The appellant can take nothing by that in this case. It is insisted that the court erred in refusing to continue the case for the appellant. The continuance was asked in order to enable the appellant to procure the attendance of one Weis as a witness. The petition states that the facts to be proved by him could not be fully established by any one else. The particular facts that could not be otherwise established were not pointed out, and we are unable to determine whether they are material or not. The evidence the appellant wished to procure as to W. I. Kilbourn’s agency would have been cumulative only of the testimony adduced at the trial for that purpose, and this was the question at issue. We cannot say that the court abused its discretion in refusing to continue the case. Let the judgment be affirmed.