Brown Mfg. Co. v. Gilpin

• Decision Date: 04 June 1906
• Citation: 96 S.W. 669,120 Mo. App. 130
• Parties: BROWN MFG. CO. v. GILPIN.
• Court: Missouri Court of Appeals

96 S.W. 669

120 Mo. App. 130

BROWN MFG. CO. v. GILPIN.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

Rehearing Denied October 1, 1906.

1. JUSTICES OF THE PEACE—APPEAL—AFFIDAVIT BY TREASURER OF APPELLANT.

The affidavit for appeal from a justice's judgment in the action of B. Co. against G., "M., being sworn, * * * says that his application for an appeal is not made for * * * delay, but because he believes the appellant to be injured by the judgment," signed "B. Co., M., Treas., Appellant," though stating that M. makes the application for himself, is not insufficient, as it is to be gathered from the entire instrument that he makes the application for the company.

2. AFFIDAVIT—FOREIGN NOTARY.

An affidavit for appeal, though made before a notary of another state, is efficacious; judicial notice being taken of the seals of notaries.

3. SAME—CERTIFICATE OF NOTARY.

Failure of a notary before whom an affidavit for appeal is taken to certify when his term of office will expire does not render the affidavit ineffective.

4. APPEAL—BOND—EXECUTION BY CORPORATION.

The appeal bond of a corporation, though not signed by its president, nor attested by its secretary, but merely "B. Co., M., Treas.," is binding on it, and sufficient.

5. PLEADING—FAILURE TO DENY UNDER OATH —NECESSITY OF PROOF.

An exhibit being the foundation of plaintiff's action, and, because not denied under oath, standing confessed, under Rev. St. 1899, §§ 746, 3967, plaintiff may introduce it in evidence without proving the signature to it was that of defendant.

6. SALES—RETURN OF GOODS—RECOVERY OF PRICE.

The seller of goods may recover their price, though the buyer returned them; the seller having, before they were reshipped, notified the buyer that they would not be received, and on their arrival stored them subject to defendant's order.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by the Brown Manufacturing Company against George A. Gilpin. Judgment for plaintiff. Defendant appeals. Affirmed.

Webster Gordon, for appellant. Charles J. Walker, for respondent.

BROADDUS, P. J.

The plaintiff corporation brought this suit in a justice's court on an alleged indebtedness for goods sold and delivered to defendant, to the amount of $34. The case originated in Columbia township, Boone county, where it was tried and judgment rendered for defendant, and plaintiff appealed to the circuit court. When the case reached the latter court, defendant filed a motion to dismiss for the following causes: "(1) Because the affidavit for an appeal is insufficient to authorize an appeal. (2) Because the appeal bond is insufficient to authorize an appeal. (3) Because the notice of appeal is insufficient and does not comply with the statute." The motion was overruled, and defendant refused to further plead or answer, and stood on his motion. The court heard the evidence and rendered judgment in favor of the plaintiff, and defendant appealed.

The affidavit for an appeal, after giving the style of the case, reads as follows:

"James M. Morey, being duly sworn, upon his oath says that his application for an appeal is not made for vexation or delay, but because he believes the appellant to be injured by the judgment of the justice, and that this appeal is from the merits. Brown Manufacturing Co., James M. Morey, Treas., Appellant.

"Subscribed and sworn to before me this 4th day of Jan., A. D. 1905. C. W. Allen, Notary Public. [Seal C. W. Allen, Notary Public, Green Co., Tenn.]"

One of the objections made to the affidavit is that it states that James M. Morey makes the application for himself, and not for the Brown Manufacturing Company. That is...