Whiteley v. Garrett & Calhoun Inc.
Whiteley v. Garrett & Calhoun Inc.
Opinion of the Court
(After stating the foregoing facts.) We are of the opinion that the court should have sustained the demurrer to the answer of the defendant 'in the original suit. Clearly no cause of action is set out against M. S. Whiteley, unless it appears from the allegations of the petition that she was indebted in some sum to the defendant or liable to account to it in some manner. There is no contention that she was liable to the defendant in any amount, unless she was bound by the agreement of her agent, J. W. Whiteley, to the effect that the funds standing to her credit and the margins of J. W. Whiteley and J. W. Whiteley Company should be treated as one fund and liable to make good a deficit in the account of J. W. Whiteley, just as his own funds would be liable therefor. Whether this agreement, which is alleged to have been made by J. W. Whiteley with the defendant, was a binding obligation upon M. S. Whiteley depends upon whether the alleged agreement between J. W. Whiteley and the defendant was one made under any authority vested in him as agent. It is alleged in the answer of the defendant that' J. W. Whiteley was manager and general agent of M. S. Whiteley. We take it that these terms are used synonymously here. Granting that the allegations of the answer show that J. W. Whiteley was vested with the widest power that can be ascribed to a general agent, still they fail to
It will be observed that in the answer of the defendant it is alleged that there was a long course of dealings between the defendant and J. W. Whiteley in conformity to the agreement alleged, as to the use of any balance of fund standing in the name of M. S. Whiteley; but notice to M. S. Whiteley of this agreement and ratification by her is not shown. Wherefore we conclude that the defendant in its answer shows no right to a recovery or an accounting as against M. S. Whiteley; and it necessarily folloAVs that the defendant presented no claim against her which would authorize the court to make her a party to the case over her objection. The demurrer should have been sustained.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.