Mathes v. Switzer Lumber Company

Decision Date28 July 1913
PartiesW. D. MATHES, Respondent, v. SWITZER LUMBER COMPANY, Appellant
CourtMissouri Court of Appeals

Appeal from Lawrence County Circuit Court.--Hon. Carr McNatt, Judge.

Reversed and remanded.

J. A Potter and I. V. McPherson for appellant.

(1) Plaintiff cannot sue upon contract and recover in tort. Link v. Vaughn, 17 Mo. 585; Clements v Yates, 69 Mo. 623; Clothers v. Acock, 43 Mo.App. 323; Sumner v. Rogers, 90 Mo. 234; Rosen v. Brodskey, 57 N.Y.S. 99. (2) Agency can never be proven by the acts or declarations of one pretending to be an agent. Craighead v. Wells, 21 Mo. 404; Anderson v. Volmer, 83 Mo. 403; Timber & Iron Co. v Cooperage Co., 112 Mo. 383; Carsen v. Cummings, 68 Mo. 325. (3) Witnesses were permitted to testify to the contents of the records of the railway company at its station, and to the contents of bills of lading issued by that railroad, and to testify orally to the contents of a printed rule of the railroad company relating to the method of signing and making bills of lading. This was error for the reason that the original records were the best evidence of these facts; they were shown to be in the possession of the railroad company at Galena, Missouri; and it was also shown that plaintiff and his attorney both lived in Galena, Missouri, and no reason or excuse was given for not producing the original records. Cozens v. Barrett, 23 Mo. 544; Christian Church v. McGowan, 62 Mo. 279; Chouteau, Harrison & Valle v. Dean, 7 Mo.App. 210; Houck v. Patty, 100 Mo.App. 302; City of St. Louis v. Arnet, 94 Mo. 275; Holland v. McCarty, 24 Mo.App. 82; Tilley v. Talbot, 18 Mo. 416; Street to the Use of Boswell v. Rosenfeld, 35 Mo. 472; Ritchey v. Kinney, 46 Mo. 298; Morton v. Heidorn, 135 Mo. 608; Summers v. Railroad, 114 Mo.App. 452. (4) Plaintiff sued upon an express contract and himself testified that no contract had ever been entered into with the defendant. There was an entire failure of proof on the cause of action sued on. Clements v. Yeates, 69 Mo. 623; Link v. Vaughan, 17 Mo. 585; Loomis v. Jones, 19 Mo.App. 234; Clothers v. Acock, 43 Mo.App. 323; Sumner v. Rogers, 90 Mo. 324; Edwards v. Albrecht, 42 Mo.App. 501; Boone v. Stever, 66 Mo. 436; Robbins v. Railroad, 34 Mo.App. 609; Burke v. Pence, 206 Mo. 333; Mossop v. Casualty Co., 137 Mo.App. 399; Cole v. Armour, 154 Mo. 350; Houston v. Tyler, 140 Mo. 264.

G. W. Thornberry and W. B. Skinner for respondent.

(1) The court properly submitted the question of agency to the jury. If the evidence adduced to support a claim of agency is undisputed the question of whether it exists or not is one of law for the court. Whenever it is disputed, however, it is one of mixed law and fact for the consideration of the jury, aided by instructions from the court. 1 Am. and Eng. Ency. of Law (2 Ed.), 967; 5 Supplement Am. and Eng. Ency. of Law (2 Ed.), 73; Dover v. Pittsburg Oil Co., 143 Cal. 501; Noble v. Barney, 124 Ga. 960; Swannell v. Byers, 123 Ill.App. 545; Dawson v. Wamble, 111 Mo.App. 532; Brooks v. Jameson, 55 Mo. 506; Rice v. Hoffman, 56 Mo. 434; Hull v. Jones, 69 Mo. 587. (2) Appellant complains of the admission of the testimony of Cottrell on the theory that the books and records of the railroad company were the only evidence competent to prove that the appellant, through its agent, shipped the ties in question from Galena, Mo., and signed a bill of lading therefor. The testimony was not based solely on the items or recitals entered in the books and records of the transactions that happened in and around said shipment. It is only where the witness based his knowledge solely on the entries and records written that such testimony is incompetent. The testimony of Cottrell was competent to prove the facts testified to by him in this case. Dawson v. Wombles, 111 Mo.App. 532. (3) Appellant complains that there is a variance between the petition and the proof that the petition is based on a specific contract and proof and recovery was on quantum meruit. The petition alleges that plaintiff sold and delivered railroad ties to defendant for which defendant owes plaintiff a certain sum, the evidence shows that plaintiff sold and delivered said ties to defendant. The object of the petition is to apprise the defendant of what proof he is required to meet so that he may meet such proof with counter proof if he desires. In this case the petition fully apprised the defendant of all the proof or evidence offered so fully that it may have prepared to meet all evidence offered, and the only defense offered was that the defendant had never had any dealings with the plaintiff as alleged in the petition or in any other way. Cole v. Armour, 154 Mo. 350-351, and authorities there cited, also all authorities cited by appellant on this point.

OPINION

FARRINGTON, J.

The plaintiff recovered judgment against the defendant for the sum of $ 668.40 in a suit instituted in Stone county and afterwards removed on change of venue to Lawrence county. The amount sued for was $ 677.46, the alleged value of 1671 railroad crossties. The answer was a general denial.

The evidence offered on the part of the plaintiff showed that he was the owner of 5000 ties on the railroad right-of-way in the town of Galena, Mo., which he sold to one Wolf, a tie contractor. Wolf, in turn, sold the 5000 ties to the defendant and received the money therefor from the defendant by draft or check when he made the sale and turned over to the defendant the bill of sale from plaintiff to him. Wolf then paid the plaintiff. Some weeks later, a tie inspector, whose name, age, size, and appearance seem to be unknown to anyone taking part in the trial, according to the record, came to Galena and inspected the 5000 ties. These ties--which were sold by the plaintiff to Wolf and by Wolf to the defendant--were loaded by Wolf's men at the time the unknown inspector was in Galena. But plaintiff claims that at the time these ties were loaded on the cars, the men continued to load ties belonging to the plaintiff to the number of 1671; he testified that when he saw them loading these additional ties he went to the unknown inspector and talked about stopping the men as he had not received any pay for them, but that the unknown inspector said the Switzer Lumber Company was good for them. On this assurance, without any contract as to the value or price, and evidently believing the unknown inspector, the plaintiff allowed the 1671 ties to be loaded and shipped away, making no further inquiry and requiring no other evidence of the taking than the assurance of the unknown inspector that the SwitzerLumber Company was good for them. Some time after this occurred, Wolf disappeared and has not since been heard of by the witnesses who testified in this case; so, also, has the unknown inspector. The ties were loaded several weeks after May 6, 1909. After waiting for some time the plaintiff wrote a letter to the Switzer Lumber Company, the defendant herein, demanding pay for the extra 1671 ties which were loaded and shipped at the same time the 5000 ties went out. In reply, the defendant on October 7, 1909, wrote a letter to the plaintiff which was introduced in evidence by the plaintiff, and which reads as follows:

"Kansas City, Mo., October 7, 1909.

"W. D. Mathes,

"Galena, Mo.

"Dear Sir: --

"Your letter of the 6th is received. It is not clear to me what you are writing about; the only record I have of any transaction with you is a bill of sale signed by you on May 6th, covering 5000 6 X 8 inch ties--4650 No. at 38c, and 350 No. 2 at 18c, total, $ 1830, receipt of which amount you acknowledged in that bill of sale. These ties were then delivered to this company by Mr. E. G. Wolf under his bill of sale to us, and we shipped the ties out. The above is all the information I have regarding any ties bought from you. Your letter is the first news I have had that there was any dispute, but if it refers to the ties above mentioned I do not see that this company has any interest in the matter.

"Yours truly,

"L. B. Moses, Northern Sales Agent.

"Copy to Mr. E. G. Wolf, Springfield, Mo., with copy of Mathes' letter."

Plaintiff offered testimony to show the acts, declarations and conduct of the unknown inspector in order to prove that he was an agent of the defendant. Plaintiff also offered evidence, which was admitted by the trial court, to show that the shipper or his agent, under the rule of the railroad company, must sign before the railroad company will bill the cars out, and that this unknown inspector signed the name of the Switzer Lumber Company and took the numbers of the cars, and that the ties were shipped. The plaintiff testified that the ties were billed out to the Great Western Railroad Company. The railroad agent testified that it is the custom of railroad companies that buy ties to send their inspector at the time the ties are loaded for the purpose of making an inspection. No offer of the bills of lading was made by the plaintiff, nor was there any showing that plaintiff was unable to procure the originals or copies of the bills of lading in these shipments. Neither was the printed rule of the railroad company, which the railroad agent testified to with reference to the shipper or his agent signing, offered by the plaintiff, nor was there a showing made that plaintiff was unable to procure the printed rule for use as evidence. There was no evidence offered to show that the defendant knew the unknown inspector was representing it on this or any other occasion, before or after; it was the first dealing plaintiff ever had with the alleged agent or with the defendant.

The appellant complains, first, that the plaintiff, having...

To continue reading

Request your trial
21 cases
  • Goffe v. National Sur. Co.
    • United States
    • United States State Supreme Court of Missouri
    • October 6, 1928
    ......C. Goffe, Receiver of Dilts & Morgan, Inc., v. National Surety Company, Appellant No. 26784 Supreme Court of Missouri October 6, 1928 . [9 ...118;. State v. Salmon, 216 Mo. 466; Mathes v. Lumber. Co., 173 Mo.App. 239; Austin Co. v. Bank, 282. S.W. 105; ......
  • Sharon v. Kansas City Granite & Monument Co.
    • United States
    • Court of Appeals of Kansas
    • January 9, 1939
    ......SHARON, DEFENDANT IN ERROR, v. KANSAS CITY GRANITE & MONUMENT COMPANY, A CORPORATION, PLAINTIFF IN ERROR Court of Appeals of Missouri, Kansas ... D. J. Smith. Mathes v. Switzer Lumber Co., 173. Mo.App. 239, 158 S.W. 729; Wade v. Boone, ......
  • Cameron v. Electric Household Stores
    • United States
    • Court of Appeal of Missouri (US)
    • February 5, 1935
    ......Mining. Co., 178 Mo.App. 531, l. c. 539; Crossley v. Lumber. Co., 187 S.W. 113; Hasler v. Land & Lumber Co.,. 101 Mo.App. 136; ... resolution of the board of directors of the company. 2. Thompson on Corporations, Sec. 1156; Ten Broek v. Boiler. Co., 20 ... court. Muth v. St. Louis Trust Co., 94 Mo.App. 94; 2. C. J. 562; Mathes v. Switzer Lbr. Co., 173 Mo.App. 239; Hodkinson v. McNeal Machine Co., ......
  • Bohannon v. Illinois Bankers' Life Ass'n
    • United States
    • Court of Appeal of Missouri (US)
    • September 23, 1929
    ...... Sinseney was the agent of the company, and that he had any. authority to waive, if he did waive, the ...Rollins,. 84 Mo. 657; Wade v. Boone (Mo. App.), 168 S.W. 366;. Mathes v. Lumber Co., 173 Mo.App. 239; 2 C. J., p. 923 (662); Sec. 1235, R. S. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT