State ex inf. v. Amick. Governor first appointed Robert D. Rogers judge to fill the vacancy, who resigned and left the office vacant again, and on August 19, 1903, the Governor appointed H. W. Johnson judge of that circuit to fill the second vacancy. Conceding Judge Johnson served under that appointment until the general election, on November 8, 1904, and was then elected to fill out the remainder of the term, which was December 31, 1904, as claimed by appellants, Judge Johnson's appointment and election were in strict compliance to the requirements of section 1631, Revised Statutes 1899, which is as follows: "If the office of the judge of any court of record of this State shall become vacant from death, resignation, or from any other cause, such vacancy shall be filled by the appointment of the Governor until the next general election held after such vacancy occurs, when the same shall be filled by election for the residue of the unexpired term.' "According to this section, he was judge of the eleventh judicial circuit without an intermission from August 19, 1903, to December 31, 1904. It is true he filled a portion of that term under his appointment, and the remainder of it under his election; but the two periods put together covered the residue of the term from August 19, 1903, to December 31, 1904. . "We are, therefore, unable to concur with the views of counsel for appellants wherein he contends the trial, the finding of facts and the judgment dismissing this cause were not made and rendered during the same term of office of the judge who tried the case." The same conclusions were reached in the cases of State ex rel. v. Burkhead, 187 Mo. 14, and State ex inf. v. Lund, 167 Mo. 228. These cases are controlling in the case at bar. We are clearly of the opinion that upon both principle and authority respondent's term of office expired State ex inf. v. Amick. on the day following the general election held on November 5, 1912. The questions involved are legal propositions about which minds of honest men might and have heretofore differed, and this proceeding has presented a favorable opportunity for this court to finally settle that vexed question. Respondent has briefed and argued his case under five separate topics, but for brevity and convenience we have disposed of them in the two paragraphs of the opinion. We are, therefore, of the opinion that the writ of ouster should issue, and it is so ordered. All concur; Graves, J., in separate opinion in which Lamm, Kennish and Brown, JJ., concur. CONCURRING OPINION. GRAVES, J.—I fully concur in the opinion of our brother WOODSON in this case, unless it be as to some language used about the case of State ex inf. v. Dabbs, 182 Mo. 359. I am not clear as to the meaning of the language used by my brother as to this case, but do not wish to be misunderstood myself thereon. I thought at the time that case was ruled that it was badly ruled; and my investigations since have confirmed those views. I further think that language therein used lends support to respondent's contention in this case. In this situation I am of the opinion that we should not attempt to justify the ruling in the Dabbs case, or to distinguish it from the case at bar. By refinement it might be distinguished, but I think the case wrong on principle, as well as under the statutes and Constitution, and should be so dealt with in the case at bar. Much in the principal opinion indicates that my views are my brother's views, and this special concurrence is only made to make certain my position. Lamm, Brown and Kennish, JJ., concur in these views. Platt v. Francis. ELIZABETH W. PLATT et al., Appellants, v. In Banc, December 31, 1912. 1. POWER OF ATTORNEY: Agent's Authority to Buy and Sell Stocks on His Own Account. A power of attorney given by a mother to a son to pledge her bonds and securities in the buying and selling of stocks in her name, did not authorize him to pledge those stocks and bonds as collateral security for stocks bought in his own name. However broad was the power to use her money, securities and properties in buying for her and in her name, it did not authorize him to use those things in his own deals. 2. Ratification of Unauthorizd Acts. One who accepts the fruits of the unauthorized acts of an agent, knowing that he has exceeded his authority, adopts and ratifies those acts. Where the agent had no power, either under his general agency or a special power of attorney, to pledge the securities of his mother in his own stock deals, but after full knowledge that he had so used them she accepted all the profits of those deals and directed them to be closed out and took the proceeds arising therefrom, she cannot be heard to contend that the broker, who acted in good faith in the belief that the power authorized the son to pledge said securities, must reimburse her for the collateral securities thus pledged. Held, by BROWN, J., dissenting, with whom KENNISH, J., concurs, that the evidence totally fails to show that the mother or her attorney, at the time he directed the deals to be closed out and accepted the proceeds for her, knew that the son had exceeded the grant of his power of attorney in pledging her securities as collateral with the broker, and therefore there was no ratification or estoppel. Appeal from St. Louis City Circuit Court.—Hon. Warwick Hough, Judge. REVERSED AND REMANDED (with directions). Isaac H. Lionberger for plaintiff-appellants. (1) The securities sued for belonged to plaintiffs. Charles R. Platt appropriated them in disregard of his trust, and without the knowledge of plaintiffs hy Platt v. Francis. pothecated them with the defendants to secure his own debt. (2) The defendants had notice and knowledge of the plaintiff's title. The stock certificates were in the name of Mrs. Elizabeth W. Platt. The bonds were purchased for Mrs. Platt, the life tenant, by the defendants. (3) The power of attorney did not authorize Charles R. Platt to sell or dispose of the securities in his own name and for his benefit, but only in the name, on behalf, and for the benefit of Elizabeth W. Platt. The power did not authorize a pledge of the securities. Warner v. Martin, 11 How. 209; Story on Agency, secs. 68, 73, 113; Gerard v. McCormack, 14 L. R. A. 234; Woodward & Co. v. Jewell, 140 U. S. 247. (4) The defendants are not entitled to the status of innocent purchasers for value without notice in the ordinary course of business. (a) They accepted the securities with knowledge of the fiduciary character of the agent, and the owner's right. Bank v. O. V. Co., 70 L. R. A. 312; Lee v. Smith, 84 Mo. 304; Duncan v. Joudon, 15 Wall. 165; Gerard v. McCormack, 14 L. R. A. (N. Y.) 234; Shaw v. Spencer, 100 Mass. 389; Bank v. Ins. Co., 104 U. S. 54; Farmington v. Railroad, 5 L. R. A. (Mass.) 849; Lamson v. Beard, 45 L. R. A. 822. (b) They took them upon a past consideration to secure an existing indebtedness. Goodman v. Simonds, 19 Mo. 114; Loewan v. Forsee, 137 Mo. 42; Taft v. Chapman, 50 N. Y. 445. (5) Plaintiffs are not estopped to set up their title merely because they left with Charles R. Platt the physical possession of the securities sued for, since they had no cause to suspect his fidelity and were ignorant of his operations. Knox v. Eden-Musee Co., 148 N. Y. 441; O'Herron v. Gray, 168 Mass. 573; Ballard v. Burgett, 40 N. Y. 314; Kickens v. Teasdale Co., 105 Mo. App. 463; Young v. Brewster, 62 Mo. App. 628. (6) The defendants sold the securities to satisfy Charles R. Platt's debt and appropriated the proceeds to the payment of his debt. They converted them to their own Platt v. Francis. use in disregard of plaintiff's right, and are liable for their value. Swim v. Wilson, 13 L. R. A. 605; Jenney Clarkson Home v. Railroad, 70 L. R. A. 787, 182 N. Y. 47; Ackerman v. Green, 195 Mo. 124; Stevens v. Elwell, 4 Maule and S. 259; Kimball v. Billings, 55 Me. 147; Dusky v. Rudder, 80 Mo. 400; 4 Sutherland on Damages, sec. 1137; Mohr v. Langan, 162 Mo. 494; Tipton v. Burton, 58 Mo. 436; Knipper v. Blumenthal, 107 Mo. 670; May v. Le Claire, 11 Wall. 217. (7) The plaintiffs are entitled to indemnity and are not restricted to the price received at a forced sale in time of extreme depression. The proper measure of their damage is the market price over a reasonable period of time. Comm. Co. v. Railroad, 64 Mo. App. 590; Galigher v. Jones, 129 U. S. 194; Joyce on Damages, secs. 1146, 1177, 1179; Sutherland on Damages, secs. 1119, 1120. A. & J. F. Lee and Morton Jourdan for defendant-appellants. (1) The general powers given Charles by the family over the property of the estate, authorized the pledges he made of its property, and Mrs. Platt's children are estopped to deny the powers exercised by him and by her over the property which is the subject of this suit. Harrison v. McReynolds, 183 Mo. 548. (2) The power of attorney gave Charles power to indorse his mother's name, as her attorney, to any transfers made, and made the recitals of the transfer binding on her and the family, and gave Charles power to pledge or sell the stock so indorsed. Lamy v. Burr, 36 Mo. 85; Hill v. Bank, 87 Mo. App. 590; Muth v. Goddard, 28 Mont. 237; Posner v. Bayless, 59 Md. 56; Blaisdell v. Bahr, 77 Ga. 381; Reinhard on Agency, sec. 200. (3) The appellants have ratified all the transactions which Francis had with Charles, by the acceptance, with knowledge, of the proceeds of those |