Franklin Avenue German Savings Institution v. Board of Education

I. Sherwood, C. J. It is'quite immaterial, so far as the present action is concerned, what irregularities may have characterized the organization of “ the Special School District for the Town of Roscoe.” In 1870, prior to the issuance of the bonds in suit, a board of directors was elected, qualified and entered upon the discharge of their duties, and since that time their successors have been regularly elected and acted in that official capacity, and been generally recognized as the “ Board of Education of the Independent School District of the Town of Roscoe ;” and the county court have so recognized them. This being true, such board must be regarded as one de facto, whose right to act none but the State is competent to question. II. No difficulty is experienced as to the liability of the defendant board on the bonds in suit, so far at least as concerns the form in which those bonds are signed. No principle is more firmly established than that the acts of officers and agents, as respects commercial paper and the like, do not derive their validity from professing on their face to have been done in the exercise of delegated authority. ' The books abound with instances affirmative of this position; ( Washington Mutual Fire Ins. Co. v. St. Mary's Seminary, 52 Mo. 480, and cases cited; Ferris v. Thaw, 72 Mo. 446, and cases cited ;) the liability of the principal in such cases, depending on the act done and not on the form in which such act finds expression. By section 12 of the-law to Which the writings obligatory make reference, the board of education was empowered to issue bonds, and if there was any ambiguity as to who was intended to be-bound, parol evidence, such as was offered in the court. [412] below, was competent to supply any lack in this particular. See above authorities. And if there was any difference between the instrument declared on and that offered in • evidence, advantage should have been taken of the variance .as the law provides Ferris v. Thaw, supra. III. The court below seems to have thought, as appears by the first instruction given on the part of the defendant, that plaintiff did not possess the legal capacity to purchase .and maintain suit upon the bonds. On this point it is •enough to say that the State alone is the proper party to institute such an inquiry. Thornton v. National Exchange Bank, 71 Mo. 221, and cases cited. IV. Section 12 of the act under which the bonds in suit ■were issued, prohibits such bonds from being “ Sold or disposed of at less than ninety cents on'the dollar.” We need not, however, discuss this prohibitory feature of the .act, for the reason that there has been no violation thereof, because the bonds were not sold for less than the specified • sum. It is true that plaintiff deducted one per cent for selling the same. This was not allowable; the plaintiff could not fill the double capacity of both buyer and seller. But certainly an illegal demand for a commission which was not earned, and, therefore, should not have been • charged and deducted, cannot be permitted to avoid and render null a legitimate transfer of these bonds. Eor these reasons judgment reversed and cause remanded. All .concur.