Large v. Frick

• Decision Date: 03 December 1923
• Docket Number: No. 14892.,14892.
• Citation: 256 S.W. 90,215 Mo. App. 232
• Parties: LARGE v. FRICK CO.
• Court: Missouri Court of Appeals

256 S.W. 90

215 Mo. App. 232

LARGE v. FRICK CO.

No. 14892.

Kansas City Court of Appeals, Missouri.

December 3, 1923.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by W. H. Large against the Frick Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bente & Wilson, of Sedalia, for appellant.

W. W. Blain, of Sedalia, for respondent.

TRIMBLE, P. J.

Plaintiff brought this action to recover an alleged balance of $128.50, claimed to be due for commission on the sale of a threshing engine by plaintiff as the agent of the defendant and of Morris Machinery Company, defendant's general distributing agent, and for expenses incurred in the collection of notes for the defendant company.

The sale upon which the alleged balance of commission is due was that of a threshing machine engine to one John Deppeler, Jr., for $3,370, of which $1,000 was paid in cash and the balance was represented by three notes of $790 each, due respectively in one, two, and three years. Plaintiff received, through Morris Machinery Company, his commission of $92.50 on the first note when it was paid; and when the second note became due defendant sent it to plaintiff, who collected and remitted to defendant, retaining his commission of $92.50; and the suit is for the $92.50 commission due on the third note, and $36 expenses incurred in the collection of it and other notes of defendant; no charge being made for services in collecting said notes, save the necessary expenses incurred in so doing.

The defendant set up in its answer and counterclaim that Morris Machinery Company was defendant's general agent to sell its farm machinery in certain territory and that plaintiff was agent of said Morris Machinery Company, and, as such, sold the engine in question for the cash and the three notes aforesaid; the said notes being payable to the defendant and sent to it; that plaintiff collected the first note, and remitted in full to defendant without retaining anything, plaintiff being paid, if at all, by Morris Machinery Company; that the second note was sent to plaintiff, and he collected and remitted all of the proceeds, except the $92.25, which plaintiff wrongfully retained, less the sum of $16, which defendant agreed to allow plaintiff for expense in making collection; that during the year 1920 the Morris Machinery Company became indebted to defendant for more than $5,000, and by the contract between defendant and said Morris Machinery Company, it is provided that, when the latter owed the former, defendant could apply all commissions due the Morris Machinery Company to the payment of said indebtedness, and the total commission due the. Morris Machinery Company is not sufficient to pay said indebtedness, but the latter still owed defendant a large amount of money, after said commissions have been applied thereon; that plaintiff was not the agent of defendant, but was the agent of said Morris Machinery Company. Defendant denied that it owed the $20 of the $36 claimed for expenses, and prayed for judgment for the remainder of the $92.25, after deducting the $16 it admitted it owed to plaintiff.

The jury found for plaintiff, on his petition, in the sum of $108.25, and against defendant on its counterclaim. The defendant appealed.

The plaintiff's evidence is that he sold the engine on blanks furnished by the defendant, and, after taking the order, wired defendant to that effect, and sent the order to its general agent, Morris Machinery Company; that every year the defendant sent him price lists, and that he represented the defendant, and sold various articles of farm machinery for them; that defendant received and held the notes in controversy, and numerous letters were introduced, written by defendant, giving various directions to him as to what to do in the collection of these notes, and disclosing clearly that defendant knew plaintiff had an interest in them; that he collected the first note, and sent it to defendant direct without retaining his commission but when he remitted the proceeds of the second note he deducted his commission. Fie also testified to making the other collections as directed by defendant and the expenses incurred in so doing.

The defendant introduced a contract between it and Morris Machinery Company, whereby it became the defendant's general agent to sell its machinery in Missouri and other states, in which contract was a clause authorizing the application of its commissions to any indebtedness of the general agent to defendant, and offered evidence to the effect that, after applying all commissions of said general agent to the indebtedness owed the defendant, there was still a large debt left. Defendant also introduced in evidence the contract between Morris Machinery Company and plaintiff covering the latter's agency for it, and contended that plaintiff was its agent and not the agent of defendant.

Plaintiff, however, testified that he was "leery" of the financial reliability of Morris Machinery Company, and insisted on getting assurances from defendant, Frick Company, and, in an interview with its general manager, the latter said to plaintiff to "go ahead and we will see that you get your commission." The Morris Machinery Company afterwards went into bankruptcy. Plaintiff contends also that he had an interest in the notes when given; that defendant knew this, and could not take his interest therein for a debt owed to it by Morris Machinery Company; that defendant made Plaintiff its agent, and by its conduct is estopped from denying plaintiff's agency, and cannot be heard to say that it should not pay him.

So far as concerns the authority of Morris Machinery Company to appoint sub agents, the very nature of the work of selling machinery impliedly authorized the appointment of them. 2 C. J. 688; Hodkinson v. McNeal Machinery Co., 161 Mo. App. 87, 91, 142 S. W. 457. And, indeed, agency between plaintiff and defendant may be implied and shown by the conduct and acquiescence of the principal, or from the course of business between them, and their actions in the course of their business dealings. Haubelt Bros. v. Rea, etc., Milling Co., 77 Mo. App. 672; Heffernan v. Boteler, 87 Mo. App. 316, 322.

If one induces another to believe in the existence of a particular state of facts, and the other acts thereon to his prejudice, the former is estopped as against the latter to deny that the state of facts does in truth exist. State Bank v. Frame, 112 Mo....