Mo. Steel & Wire Co. v. Edmonds & Allgier

• Decision Date: 26 December 1939
• Docket Number: No. 6069.,6069.
• Citation: 136 S.W.2d 118
• Court: Missouri Court of Appeals
• Parties: MISSOURI STEEL & WIRE COMPANY, A CORPORATION, APPELLANT, v. EDMONDS & ALLGIER (A.E. ALLGIER ESTATE), RESPONDENT.

136 S.W.2d 118

MISSOURI STEEL & WIRE COMPANY, A CORPORATION, APPELLANT, v. EDMONDS & ALLGIER (A.E. ALLGIER ESTATE), RESPONDENT.

No. 6069.

Springfield Court of Appeals, Missouri.

December 26, 1939.

Appeal from the Circuit Court of New Madrid County. — Hon. Louis H. Schult, Judge.

REVERSED AND REMANDED (with directions).

R.F. Baynes and Creal Black for appellant.

William Oliver and Finch & Finch for respondent.

TATLOW, P.J.

This case originated in the Probate Court of New Madrid County, Missouri, upon the plaintiff's filing its demand against the estate of A.E. Allgier, deceased, based upon three invoices of merchandise, aggregating $459.62, purportedly sold in 1935 to the firm of Edmonds & Allgier, contractors and builders, Clarkton and Risco, Missouri.

The administratrix filed an answer to the demand, denying that the goods were purchased by the partnership, but not denying the existence of the partnership. The probate court, by agreement, tried the case without a jury, and rendered a judgment in favor of the claimant for the amount of the demand. The defendant took an appeal to the Circuit Court of New Madrid County, Missouri, where the case was tried before a jury, resulting in a verdict for the defendant, concurred in by eleven of the jurors. The claimant, as the plaintiff below, has properly appealed the case to this court.

The case was submitted to the jury on the appellant's evidence. The respondent offered no evidence.

J.F. Monnig, being duly sworn, on direct examination, testified on behalf of plaintiff, as follows:

"My name is J.F. Monnig. I live in St. Louis, Missouri. I am Secretary and Treasurer of the Missouri Steel & Wire Company. I held that office when the merchandise in issue was sold. I received the letter marked `Exhibit A' through the U.S. Mail. I did not ship any merchandise on this letter. This letter was on the letterhead of Edmonds & Allgier, Contractors, Risco & Clarkton, Missouri. I received the letter marked `Exhibit B' on August 23. I received it through the U.S. Mail. It is written on the stationery of Edmonds & Allgier. I received the letter marked `Exhibit C' on August 28 (1935). I received it through U.S. Mail. It was on the stationery of Edmonds & Allgier, too. I did not ship any merchandise on this letter. A truck driver by the name of Larton (Lorton) came to our place and gave us an order for shingles — gave us an order from Edmonds & Allgier. I immediately called Edmonds & Allgier, on long distance telephone, at Clarkton, Missouri, and they connected me with J.C. Edmonds. He said he was buying for Edmonds & Allgier and the order was O.K. I asked for credit references. He gave me the names of two, one of which was a St. Louis firm. I checked on the St. Louis reference and report was that the firm was good for its obligations. On the strength of that credit reference, I delivered the merchandise to Mr. Larton. These three exhibits are shipping tickets. They itemize the three shipments of merchandise to Edmonds & Allgier. The total amount, as shown by the delivery tickets and invoices, thus shipped was $459.62. This amount agrees with the amount set out on the original ledger sheet which I hold in my hand. The prices charged represent the fair, reasonable, and market price of the items sold. No part of the account has been paid. The merchandise was shipped to Edmonds & Allgier, Clarkton, Missouri."

In addition to his direct testimony the cross-examination developed only that the witness had no conversation with Edmonds except his conversation over the telephone, the date of which he fixed as September 4th, the date of the delivery of the goods, and that he had no correspondence or conversation personally with Mr. Allgier, the deceased.

The correspondence and shipping tickets were offered in evidence and consisted of the following:

                              "Exhibit A
                "Nothing too large or too small
                          "No charges on estimations
                         "Edmonds & Allgier
                        "Contractors & Builders
                "Clarkton, Mo.             Risco, Mo
                                    "Conran, Missouri
                                     "July 10, 1935
                "Missouri Steel & Wire Co
                

"St. Louis, Missouri.

"Gentlemen: Please quote us prices on Steeltex Metal Lath, and kindly send us a catalogue on prices of your material or price lists on all of your building materials.

                    "Very truly yours,
                      "Edmonds & Allgier, Contractors.
                         "By I.C. Edmonds."
                           "Exhibit B.
                     "(Same stationery form — letter
                         dated August 23, 1935.)
                

"Gentlemen: Have you as many as a car or ½ car of shingles like the ones I bought from you. They were seconds, and in a two tab, or they don't necessarily have to be in a two tab. Please quote me prices, if you have in return mail.

                    "Respectfully yours,
                                       "I.C. Edmonds."
                

"Exhibit C.

"Same stationery form as Exhibit A; letter dated Aug. 28, 1935. Letter addressed to Mo. Steel & Wire Co. Written in first person, giving references. Letter signed `I.C. Edmonds.'"

                              "Exhibit D.
                           "(Shipping Ticket).
                    "Missouri Steel & Wire Company
                        "1400 to 1414 Broadway
                          "St. Louis, Missouri
                "At St. Louis, Mo. 8/25 Del. 9/4
                          "Customer's Order No. 22712
                "Deliver by call
                "Charge to Edmonds & Allgier
                "Address
                "Deliver to Clarkton, Mo.
                

                "No. Packages — Description             Price Extension
                "32 Sq 11 1/3 × 36 Red Hex. Seconds .... 3.22   103.04
                "35 Sq 10 × 36 Green Cut out Seconds ... 4.00   140.00
                "5 1 gal Muriatic Acid .................  .50     2.50
                                                                ______
                                                                245.54
                       "5 containers ...................  .10      .50
                                                                ______
                                                                246.04
                

                "D 22705
                "Received by Ralph Lorton (signed)."
                

"Exhibit E.

"(Shipping Ticket)

"Same form as above; same billing, date of 9/5/35, shipped to Edmonds & Allgier, Clarkton, Mo., mdse in amount of $174.20. Shipping ticket signed by `Ralph Lorton.'"

"Exhibit F.

"(Shipping Ticket)

"Same form as `Exhibits D & E'. Date of 9/16/35. Mdse of value $39.38 sent to Edmonds & Allgier, Clarkton, Mo. Truck driver Ralph Lorton executing receipt for delivery of mdse to him by plaintiff."

"Exhibit G.

                       "(Carbon copy of Letter)
                                  "August 31st, 1935.
                "Edmonds & Allgier,
                  "Clarkton, Missouri.
                

"Gentlemen: We just finished unloading the carload containing the second shingles and were agreeably surprised to find two very fine lots of seconds.

.......

"If you want any of these, we suggest that you send in your order at once as we do not believe they are going to last so awfully long.

                       "Yours very truly,
                             "Missouri Steel & Wire Co.
                "JTM:MS."
                

"Exhibits H, I, J & K" are likewise carbon copies of letters written by Missouri Steel & Wire Company to Edmonds & Allgier, Clarkton, Missouri, and deal with price quoting or shipment of merchandise in issue.

"Exhibit L.

ARTICLE OF AGREEMENT

"This article of agreement made and entered into this 15th day of November, 1935, by and between Consolidated School District No. 10 of New Madrid County, Missouri, party of the first part, and Edmonds & Allgier, a copartnership composed of Ira Edmonds and A.E. Allgier, hereinafter referred to as the contractors, party of the second part, WITNESSETH:

"... (Body of building contract)

"In Witness Whereof the said party of the first part has hereby called (caused) these presents to be executed by its President and attested by its Secretary by authority of its Board of Directors and second party has executed this instrument by the signature of A.E. Allgier a member of the firm.

                       "Consolidated District No. 10
                           "New Madrid County, Mo.
                            "By Earl Cambrian President
                       "Edmonds & Allgier
                           "By `A. E. Allgier
                               "a member of the firm.
                "Attest:
                  "W.E. Scobey
                  "Secretary."
                

"Exhibit M.

"This Agreement made the Fifth day of December, 1934, by and between I.C. Edmonds and A.E. Allgier, a copartnership doing business as Edmonds & Allgier, of Clarkton, Missouri, hereinafter called the Contractors, and the Board of Education, Consolidated School District No. 10, New Madrid County, Missouri, Marston, Missouri, hereinafter called the owner,

"Witnesseth, ... (here body of contract)

"In Witness Whereof the parties hereto have executed this agreement, the day and year first above written.

                       "Edmonds & Allgier
                          "By `I. C. Edmonds
                          "By `A. E. Allgier
                       "Con. Sch. Dist. No. 10
                        New Madrid Co., Missouri
                          "By `J. H. Avery, President
                          "By `W. E. Scobey, Secretary."
                

"Exhibit N.'.

"This is a contract made and entered into June 3, 1935, by and between Edmonds & Allgier, Clarkton, Mo., and Consolidated Dist. No. 3, New Madrid County, Conran, Missouri, with execution clause as follows:

"In Witness Whereof the parties hereto have executed this agreement, the day and year first above written.

                                 "Edmonds & Allgier
                                   "By I. C. Edmonds
                                        "Contractor."
                

The abstract further shows:

"No evidence was offered on behalf of the defendant.

"The plaintiff offered two instructions, both of which were given, and the defendant offered one instruction other than its demurrer, which was also given. The verdict of the jury was for the defendant. The plaintiff offered no peremptory instruction."

The error relied upon by the appellant is the giving of defendant's Instruction "A," for the reason that there is no evidence to support it. The instruction so given is as follows:

"The court instructs the jury that, if you find and believe from the evidence that Edmonds ordered the materials from plaintiff as an individual, then your verdict must be for the defendant."

The only evidence that the respondent has pointed out, or that we have been able to find in the record to support this instruction,...