Bacon Piano Co. v. Wilson

• Decision Date: 19 August 1933
• Docket Number: No. 5143.,5143.
• Parties: BACON PIANO CO. v. WILSON.
• Court: Missouri Court of Appeals

62 S.W.2d 774

BACON PIANO CO. v. WILSON.

No. 5143.

Springfield Court of Appeals. Missouri.

August 19, 1933.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

"Not to be reported in State Reports."

Action in replevin by the Bacon Piano Company against Iona E. Wilson. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

W. G. Bray, of Senath, and McKay & Peal, of Caruthersville, for appellant.

Sharon J. Pate and Sam J. Corbett, both of Caruthersville, for respondent.

BAILEY, Judge.

This is an action in replevin for possession of a piano. The cause originated in justice court and reached the circuit court on appeal. It was there tried by a jury, and verdict and judgment was for defendant. Plaintiff filed a motion for new trial which was sustained. Defendant appealed to this court from the order sustaining the motion for new trial, and the judgment of the circuit court was affirmed. Bacon Piano Company v. Wilson (Mo. App.) 27 S.W.(2d) 1051. The case was again tried in circuit court and again resulted in a verdict and judgment for defendant. Plaintiff has appealed from that judgment.

There were no formal pleadings. The facts are about the same as on the former appeal. Smith-Medcalf & Company was a Missouri corporation located at Caruthersville, Mo., and engaged in the business of selling drugs, jewelry, and pianos. On the 9th day of July, 1924, Smith-Medcalf sold a piano to defendant Iona E. W. Wilson for the price of $415, to be paid in installments, and executed a contract in the nature of a mortgage to secure the purchase price. She paid on this contract until she owed a balance of $165. On November 22, 1924, V. F. Smith, president of the Smith-Medcalf Company, assigned the sales contract, which defendant had executed as above set forth, to the Bacon Piano Company, to which company the Smith-Medcalf Company was heavily indebted at the time for merchandise purchased. This assignment was signed, "Smith-Medcalf & Co. V. F. Smith, Dealer." Thereafter, in January, 1927, the Smith-Medcalf Company went into bankruptcy. Defendant made no payments to the Bacon Piano Company, but, when notified of the assignment something over a year after she purchased the piano, she refused to make further payments until certain, as she said, of the person or company entitled thereto.

The first assignment of error in plaintiff's brief is that the verdict is against the weight of the evidence and for the wrong party. This is not a court in which that question may be considered. If there is any substantial evidence to support the verdict the appellate court will not interfere with the verdict and judgment on the ground that it is against the weight of the evidence. But plaintiff urges the evidence was undisputed, and that the trial court should have directed a verdict for plaintiff, as a matter of law. The evidence shows that V. F. Smith was president, treasurer, and general manager of the Smith-Medcalf Company. He testified that:

"It was my duty as treasurer to receive and safely keep and to disburse all monies that came into the corporation. By virtue of my position I borrowed money occasionally with the knowledge, consent and verbal authority of the other two directors. I signed checks, notes and documents required to be signed by the corporation, and also assigned and sold notes held by the corporation, all of which, however, was done with the knowledge and consent of the other parties in interest, or the stockholders and directors.

"I also had the authority by knowledge and verbal approval of the other directors, to make and approve sales, either for cash or on credit. During the years 1923, 1924, and 1925, the Smith-Medcalf Company was purchasing pianos from Bacon Piano Company. We carried in our business their pianos and frequently sold them on time. I had authority to endorse bills, receivable notes, and other written documents and contracts in the business transacted by the Smith-Medcalf Company and the Bacon Piano Company."

He further testified that the assignment to plaintiff was made with the full knowledge and consent of Sharon J. Pate and R. A. Medcalf, the other two directors of the Smith-Medcalf Company, and that they made no objections thereto. There was also circumstantial evidence that V. F. Smith had authority to make the assignment in question. In other words, there was evidence which would, in our opinion, sustain a verdict that the assignment of the Wilson contract was binding and legal on the corporation. Neither the minutes nor the by-laws of the corporation were offered in evidence. But the other two directors testified, without objection, that Smith had no authority to pledge the assets of the...