Webb v. Allington

Philips, P. J. This is an action against the defendants to recover on several instruments of writing in the form of promissory notes. Allington made default, and Anderson interposed the plea of non est factum. The record, as presented in the abstract furnished by the appellant, is imperfect; but its defects have been so far supplied, in the matter of evidence, by respondent, as not to j ustify us in visiting upon appellant the penalty prescribed in rule fifteen of this court. Prom it we gather, substantially, the following state of facts: Plaintiff’s evidence tended to show that defendants were partners, at Webb City, in running a crusher, for crushing and cleaning zinc ore. Allington was the active manager. He rah the machinery, employed and paid the hands. The concern being in need of money to carry on the business, and pay the employes, on consultation between the partners, it was concluded that it would be best to borrow some money to that end. And the evidence tended to show that Anderson authorized Allington to borrow money therefor. Accordingly, Allington did effect a loan from the plaintiff, and execute to him therefor instruments of writing, in the form of [568] promissory notes, but with the additional stipulation, that in case of suit for the collection of the same, the defendants should pay the sum of ten per cent, on the principal debt as attorney’s fee. The evidence shows that this money was used by Allington in paying off the hands employed in conducting the business of the concern. Anderson, while not denying the conversation about the necessity of borrowing money, insists that he did not authorize Allington to execute notes therefor, much less notes containing the stipulation for paying the additional ten per cent. He also questions the existence of the alleged partnership ; and further insists that if any partnership existed it was a non-trading partnership, under which one partner had no implied authority to make commercial paper in the firm name. The plaintiff recovered judgment, and the defendant, Anderson, has. appealed. I. The only questions which are properly presented for review on the record are as to the correctness of the action of the trial court in giving the instructions asked by plaintiff. As to those given by the court of its own motion, no error is assignable here thereon, for the reason that the appellant did not raise such objection in the motion for new trial. Kimberlin v. Short, 24 Mo. App. 643, and cas. cit. And as to the instructions asked by defendant, and refused by the court, we are likewise precluded from their consideration, for the reason that-defendant did not except to the action of the court at the time of such refusal. Kieler v. Reed, 9 Mo. App. 580; Robinson v. Shepherd, 8 Mo. 136; Dozier v. Jerman, 30 Mo. 216. II. This being a non-trading co-partnership, Allington could not bind Anderson by a note executed by him in the partnership name, without prior authority therefor, or evidence that it was customary so to do. Deardorf v. Thacher, 78 Mo. 128. It is quite manifest, however, from, the instructions given by the court, that the jury must have found, from the evidence, either, that [569] such antecedent authority was given by Anderson, or that he ratified the act subsequently. III. But it is further contended by defendant, Anderson, that, conceding the authorization to borrow money, this did not warrant Allington in executing a promissory note therefor, much less a contract in writing to pay the additional ten per cent, as attorney’s fee. It is true, as suggested by respondent’s counsel, that the appellant has not preserved in the record the instruments sued on, so as to enable us, by reading them, to determine their legal character; but it is quite inferable, from the evidence, and the instructions, that the trial court treated them as promissory notes ; and it is quite manifest, from the instructions, that the instruments executed by Allington to plaintiff contained some provision for the payment of an additional ten per cent, on the principal sum ; for the court expressly directed the jury to find this additional sum, if they found the issues for the plaintiff. If the instrument contained no such provision, the respondent would be impaled upon the other horn of the dilemma, that the court gave instructions on his behalf, unsupported by a particle of evidence, the benefit of which he had in the verdict returned by the jury. As to the implied authority of Allington to execute, in the firm name, a promissory note for the money borrowed, we take it to be too clear for argument. The evidence shows that the plaintiff was a banker in Webb City, and that his name was mentioned as the probable party from whom the accommodation could be had. As the giving of a promissory note, bearing customary rate of interest, for borrowed money, is so usual, it must be presumed to have been within the contemplation of the parties that the loan should be thus effectuated. Story on Agency, 58, 59, 60, 85; First National Bank v. Gay et al., 68 Mo. 37, 38. The more serious question is as to the correctness of that portion of the instructions which authorized the recovery for the ten per cent, attorney’s fee. We are of [570] opinion that the claimed authority given by Anderson to Allington, to borrow money, did not carry with it an implied authority to bind Anderson to pay this additional sum. Such stipulations in like contracts are so much disfavored by our Supreme Court that they are held to destroy the quality of commercial paper which attaches to promissory notes in the usual form. First National Bank v. Gay et al., supra. If any such custom or usage, in borrowing money, existed in that community, it devolved on the plaintiff to show it. No such proof was made, and I presume could not be. In the absence of such custom, we must hold that it was not reasonably within the implied power of Allington to bind Anderson to such compact. First National Bank v. Gay et al., supra; Daniel on Neg. Inst., sect. 292; School District v. Sippry, 54 Ill. 287; Sewanee Mining Co. v. McCall, 3 Head. 621. . IY. As this case must be reversed,* we should now determine the further question : Does this unauthorized stipulation, respecting the payment of the additional ten per cent, attorney’s fee, invalidate the whole instrument, so that no recovery can be had against Anderson for the money borrowed, with interest ? I understand the rule to be that, where there are several considerations recited as the ground of a promise, and any of them be frivolous and insufficient, or illegal, and the others are good and sufficient, then the good may be severed from the bad, and the promise upheld. But if the bad be so connected with the good as to make the consideration an entirety and incapable of severance, the whole promise is void. On the maxim that “the common law doth divide according to common reason,” we must hold that the stipulation to pay the unlawful ten per cent, is severable from the promise to pay the money borrowed with interest. So much so that the plaintiff might have sued to recover on the instrument without asking judgment for the attorney’s fee. Brooks v. Ancell, 51 Mo. 178; 1 Pars. Cont. [7 Ed.] 455; Gelpoke v. City of [571] Dubuque, 1 Wall. 222; Hynes v. Hays, 25 Ind. 32; Treadwell v. Davis, 34 Cal. 601; Frazier v. Thompson, 2 Watts & S. 236; Cassady v. Woodbury Co., 13 Iowa, 113. Y. It is contended, however, by respondent, that defendant ratified the act of Allington, and, therefore, he is estopped from denying his authority. It would be a sufficient answer to this contention to say, that no such issue was raised by the pleadings. A ratification must be pleaded by the party seeking its protection. Wade v. Hardy, 75 Mo. 399; Kersey v. Garton, 77 Mo. 645; Noble v. Blount, 77 Mo. 235; Stone v. Richardson, 21 Mo. App. 17. If the money borrowed by Allington was used by him in and about the partnership business, with Anderson’s knowledge, it would not lie in his mouth to «question the authority to borrow the money. Tenbroke v. Winn Boiler Compound Company, 20 Mo. App. 19; Brown v. Wright, 25 Mo. App. 54; Deardorf v. Thacher, 78 Mo. 129; Pike v. Douglass, 28 Ark. 59. But, before defendant, on this ground, could be- held for the ten per cent, attorney’s fee, it would devolve on the plaintiff to show by evidence that Anderson knew, at the time of the alleged ratification, of the promise of Allington to pay such fee. yi. We shall not review the instructions, and point out their defects in detail. Observing the real issues in the case, and guided by this opinion, we do not anticipate that the trial court will have any difficulty in framing proper instructions in the further progress of this case. It follows that the judgment of the circuit court is reversed, and the cause is remanded for further proceeding. All concur.