Banjo v. Wacker
| Decision Date | 03 April 1923 |
| Docket Number | No. 17613.,17613. |
| Citation | 251 S.W. 456 |
| Parties | BANJO v. WACKER. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Vital Garesche, Judge.
"Not to be officially published."
Action by C. J. Banjo, also known as C. J. Boyijian, against C. W. Wacker, doing business as C. W. Wacker & Co. Judgment for defendant, and plaintiff appeals. Tieversed and remanded.
Francis R. Stout, of St. Louis, for appellant.
Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.
This suit was instituted before a justice of the peace. Plaintiff alleges that defendant contracted to sell to him 50 sacks of cane sugar, of 100 pounds each, at the price of $19.50 per sack, or 19frac12; cents per pound, and that plaintiff paid the purchase price thereof, to wit, $975; that defendant delivered to plaintiff 50 sacks of beet sugar, the market price of which, at the time of the making of the contract and the delivery of the sugar, was 11 cents per pound; and that plaintiff was thereby damaged in the sum of $425. It does not appear that any answer was filed. The cause found its way into the circuit court where a trial de novo, before the court and a jury, resulted in a verdict and judgment for the defendant, from which the plaintiff appeals.
The evidence shows that the sugar was sold to plaintiff by one McMahon, a salesman of defendant. Plaintiff testified that McMahon came to his place of business in the city of St. Louis and agreed to sell plaintiff 50 sacks of cane sugar at the price mentioned above, and stating that one Petring, another salesman of defendant, who was then in Kansas City, had the sugar and would send it to plaintiff as soon as the money was sent to him. It appears that plaintiff did not have quite enough money on deposit in bank to pay the full amount of the purchase price, and because of this he went with McMahon to the bank where he took the matter up with the assistant cashier, one Berger, and made arrangements to take care of that matter. He said that there was some discussion at the bank between Berger and McMahon as to "just how the money was to be handled"; that he made his check payable to the bank, and McMahon gave him a copy of the "order" for the sugar, which was introduced in evidence below and which is as follows:
"C. W. Wacker Co
"St. Louis Brokers, Baker Supplies
Groceries, Drugs
"508-9 Granite .Bldg
"This order is subject to our acceptance
"Banjo Candy Co.
"50 sacks cane sugar, at $19.50 l. o. b. Kansas
City, Mo.
"Rush. Send money
"Confirm at once.
"OK at 100 pd."
Plaintiff further testified that, when the 50 sacks of sugar were delivered to him, he found that the sugar was beet sugar, whereupon he called defendant by telephone and defendant sent McMahon to look at the sugar; that McMahon said that he "ordered it for cane from Yr. Petring and he got beet"; and that the following day Petring came to plaintiff's place of business, looked at the sugar, and said that defendant "would make it all right with plaintiff."
On cross-examination plaintiff testified that he knew that defendant was a broker with offices in the Granite Building in the city of St. Louis; that in the conversation at the bank he heard Berger, the assistant cashier, "talk about a grocery house in Kansas City"; that McMahon said he wanted to send the money to Petring in Kansas City, and he heard Barger and McMahon mention the Klein Grocery Company, but did not hear what was said about it. Plaintiff said:
'
It appears that on December 26, 1919, plaintiff wrote a letter to the Klein Grocery Company, saying, "I purchased fifty bags of cane sugar from you," etc., and asking that the company reimburse him. As to this letter plaintiff testified that he had called upon Petring asking him to settle the matter, and that Petring came to plaintiff's house and said that he (Petring) had bought the sugar from the Klein Grocery Company and suggested that plaintiff write a letter to them and they would refund the "difference between cane and beet," and that thereupon Petring wrote this letter to the Klein Grocery Company and plaintiff copied it.
Other testimony for plaintiff tends to show that the reasonable market value of beet sugar at the time in question was 11frac12; cents to 12 cents per pound.
Defendant, as a witness in his own behalf, testified that he was in the brokerage business in the city of St. Louis, and that the sugar involved in the transaction was not his sugar; that McMahon, defendant's salesman, brought in the information that plaintiff had bought the sugar; and that defendant thereupon telephoned to the Klein Grocery Company in Kansas City to see if that company would sell the sugar. On cross-examination he said that he sometimes sold sugar for himself; that he told his salesman, McMahon, to go ahead with this transaction, to get his buyer, and send the money to the Klein Grocery Company; that defendant received only his brokerage in the transaction. Defendant was questioned as to his testimony before the justice of the peace, but could not remember his answers to many of the questions read to him. Neither McMahon nor Petring was called as a witness.
In rebuttal plaintiff introduced the testimony of a shorthand reporter who had taken down defendant's testimony at the trial before the justice of the peace, from which it appears that defendant testified that the Klein Grocery Company gave him a net price and told him to add the brokerage; that they quoted him $18.50 per sack, did not tell him how much to charge, and did not care how much he charged.
At the request of plaintiff the court instructed the jury that, if they found that at the time of the agreement sued upon plaintiff was entering into the transaction extending credit to the defendant and holding him responsible for the fulfillment of the agreement, and that defendant knew that plaintiff was so entering into the transaction extending credit to and holding defendant responsible for the proper fulfillment of the agreement, then to find for plaintiff.
An instruction given at defendant's request (defendant's instruction No. 6) told the jury that, if they found the...
To continue reading
Request your trial
-
Lange v. Baker
...S.W. 798; A. A. Electric Machinery Co., supra, 193 S.W.2d loc. cit. 636(11); Rankin, supra, 13 S.W.2d loc. cit. 1097; Banjo v. Wacker, Mo.App., 251 S.W. 456, 457-458(2); Haskett v. Unsell, 181 Mo.App. 480, 485, 164 S.W. 651, 652(1); 3 Am.Jur.2d, Agency, Sec. 320, loc. cit. 677; 3 C.J.S. Age......
-
Mayer v. Buchanan.
...Co. v. Marsh, 247 N.Y. 392, 160 N.E. 651; Frederick Raff Co. v. Goeben, 116 Conn. 83, 163 A. 462, and cases there cited; Banjo v. Wacker, Mo.App., 251 S.W. 456; Berger v. Watjen, R.I., 106 A. 740; Curtis v. Miller, 73 W.Va. 481, 80 S.E. 774, 50 L.R.A., N.S., 601. 7Inland Waterways Corp. v. ......
-
A. A. Elec. Machinery Co. v. Block
... ... Co., Mo.App., 58 S.W.2d 346; Porter v. Merrill, ... 138 Mo. 555, 39 S.W. 798; Heath v. Goslin, 80 Mo ... 310, 314, 50 Am.Rep. 505; Banjo v. Wacker, Mo.App., ... 251 S.W. 456, 458; Hamlin v. Abell, 120 Mo. 188, 25 ... S.W. 516 ... ... Defendant says that notice ... ...
-
A. A. Electric Machinery Co. v. Block
...Mo.App., 58 S.W.2d 346; Porter v. Merrill, 138 Mo. 555, 39 S.W. 798; Heath v. Goslin, 80 Mo. 310, 314, 50 Am.Rep. 505; Banjo v. Wacker, Mo.App., 251 S.W. 456, 458; Hamlin v. Abell, 120 Mo. 188, 25 S.W. Defendant says that notice that the Edmond Theatre Company, or some one other than defend......