Laclede Firebrick Manufacturing Co. v. Williams

delivered the opinion of the court.

Upon the facts in the present case there is no substantial conflict of testimony. It does not appear that *42Horner has remaining in his hands any money or evidences o£ indebtedness paid by the city in connection with the Twentieth-street district sewer; nor is any intentional fraud on his part shown in the disbursement of this fund. Therefore, the question of his liability in the present case must be answered by construction of the written instruments under which he acted.

The contract between Williams and the Laclede Company clearly provided: That the company was to receive from Horner eighty per cent, of the price agreed upon for sewer pipe delivered and used whenever, from time to time during the prosecution of the improvement, the city paid Horner, upon estimates of the city engineer, eighty per cent, of the amounts due Williams from the city; that the company should have a lien for the balance of its claim upon the remaining twenty per cent, retained by the city under its contract with Williams until the completion of the sewer; and that out of this twenty per cent, the company should be paid by Horner its balance in full as soon as the latter fund came into his hands.

Horner indorsed upon the contract his written acceptance thereof; he thereby became a trustee for the company, and obligated himself to comply with the foregoing terms and conditions, unless such compliance was in some way qualified or limited. In his written indorsement accepting the trust Horner declared that he would perform the contract “according to the true tenor and effect thereof, construed with the power of attorney given \liini\ by Joseph Williams. * * *” We shall assume, without discussion, that this language operated to render Horner’s compliance with the agreement subject to any limitation of his authority contained in the power of attorney through which he became Williams’ financial agent in the premises. It therefore becomes necessary to briefly notice the latter instrument.

The power of attorney authorized Horner to receive the *43warrants and other evidences of indebtedness coming to Williams under the latter’s contract with the city, to exchange the same for money on the best terms possible, and with the proceeds to liquidate the claims against Williams for work performed and materials furnished in constructing the Twentieth-street district sewer. By the very terms of the instrument, Horner, in receiving and disbursing the money in question, was placed as nearly as possible in the position occupied by Williams, and vested with the precise power and authority that Williams himself would have exercised had no one been selected to act in his stead. He was not required to distribute the funds pro rata among the workmen and material-men; nor were preferences among creditors forbidden. If the money coming into Horner’s hands by virtue of Williams’ contract with the city should prove insufficient to pay all the claims in connection therewith, lie might discriminate in favor of one claimant and against another; he could pay all that was due the workmen and leave the material-men partially unpaid; or he might pay the entire claim of one material-man and a portion of the claim of another. Whatever Williams could legally have done in this regard Horner was empowered to do. That this was Horner’s belief at the time is evidenced by the fact that he paid a part of the creditors, viz., the workmen, in full, leaving others, including the Laclede Company, partially unsatisfied.

We discover in the power of attorney no inconsistency with Williams’ agreement as to the mode of paying and securing the purchase price of the Laclede Company’s sewer pipe. And upon Homer’s acceptance of the trust he became a party to this portion of the contract for pipe, and bound himself to comply with its terms. If he did not intend to do so, he should have declined acceptance; for, under the circumstances, it is fair to presume that his conduct induced the company to make the agreement with Williams and to part with its property.

*44No brief has been filed by defendant in error, and we are not advised of the theory upon which the court below proceeded; but, according to our view, under the pleadings and evidence as presented by the present record, Horner, as well as Williams, should have been held liable.

The judgment is accordingly reversed and the cause remanded for a new trial. •

Reversed.

Mr. Justice Elliott, having presided at the trial below, did not participate in this decision.