Baptiste Tent & Awning Co. v. Uhri, 24987.

• Decision Date: 06 June 1939
• Docket Number: No. 24987.,24987.
• Citation: 129 S.W.2d 9
• Court: Missouri Court of Appeals
• Parties: BAPTISTE TENT & AWNING CO. v. UHRI.

129 S.W.2d 9

BAPTISTE TENT & AWNING CO. v. UHRI.

No. 24987.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Judge.

"Not to be published in State Reports."

Action by the Baptiste Tent & Awning Company against William C. Uhri, Jr., and wife, on an account. The action was dismissed as to the named defendant's wife upon suggestion of her bankruptcy. From an adverse judgment, the plaintiff appeals.

Reversed and remanded.

Hall & Todd, of St. Louis, for appellant.

Chas. L. Long, of St. Louis, for respondent.

SUTTON, Commissioner.

This action, which was commenced before a justice of the peace, is founded on an account filed with the justice, as follows:

                "Mr. and Mrs. W. C. Uhri, Jr
                929 S. Skinker Blvd
                To Baptiste Tent & Awning Co., Dr
                1933
                May 10 To merchandise              $150.00
                Dec. 27                              14.67
                                                   _______
                                                    164.67
                and Interest."
                

The justice rendered judgment for defendants, and plaintiff appealed to the circuit court. The action was commenced against both defendant and his wife. The bankruptcy of Mrs. Uhri being suggested in the circuit court, plaintiff dismissed as to her. The trial, with a jury, in the circuit court, resulted in a verdict for defendant. Judgment was given accordingly. Plaintiff appeals.

Mrs. Uhri testified that she and Mr. Uhri were married in June, 1930; that she was the owner of a dwelling at 929 South Skinker; that she bought it in 1926; that George Baptiste, the president of the Tent and Awning Company, made awnings for her when the house was new, and the bill sued for here is for recovering the old frames; that they were put up first about three years before they were recovered; that she called Mr. Baptiste to come out and get the awnings; that he said the awnings would have to be recovered; that she told him to send his Mr. Whitworth out to see her and go over and figure out what the recovering of the old frames would amount to; that Mr. Whitworth took the measurements of the windows and gave her an estimate of $150 for the recovering; that Mr. Uhri was present at the time, and told Mr. Whitworth that he would not be able to pay for the new awnings; that she explained to Mr. Whitworth that she had some bonds that were due to pay interest at a later date and that, if Mr. Baptiste would agree to hold the bill until that time, she would pay the bill then; that Mr. Whitworth went back to the office, and called her the next morning and told her that the terms agreed upon between her and him were acceptable to Mr. Baptiste; that it was necessary for her to be away from home that day, and it was arranged that when Mr. Whitworth came out Mr. Uhri would sign the contract as her agent; that she afterwards paid $25 on the account and got a receipt for it.

The contract put in evidence commences as follows:

                  "Baptiste Tent & Awning Co
                       "Sold to W. C. Uhri."
                

This is followed by the description and measurements of the awnings, with the figures 150.00. It concludes as follows:

"Accepted by Wm. C. Uhri, Jr.

"Salesman Charles Whitworth.

"This order is accepted subject to condition printed on reverse side."

On the reverse side it is provided that the contract, if signed by the owner, his agent, or employe, becomes a binding contract on the owner's part.

The awnings were recovered pursuant to this contract, and were put up and used on Mrs. Uhri's dwelling. They were afterwards taken down by plaintiff for storage, and have since remained with plaintiff in storage.

Defendant put in evidence a written statement of Charles Whitworth, which, it was agreed, would be his testimony if present in court, as follows: "On April 27, 1933, and prior thereto, I was employed by Baptiste Tent & Awning Company as a salesman. I had previously done business with Mrs. Wm. C. Uhri, and shortly prior to April 27, 1933, I received a call from Mrs. Wm. C. Uhri to come out and give an estimate for repairing some awnings for her property at 929 Skinker Road. I went out on or about April 26, 1933, and gave the estimate. During the discussion, Mr. Wm. C. Uhri made the statement that due to bad business, he could not afford to buy the awnings. Mrs. Uhri then said that she owned the house and that she would pay for them when she received the interest on her bonds in December, and she asked me to go to the office and see if the Baptiste Tent and Awning Company would carry her until December and let her know. I told Mrs. Uhri that I would come back the next day. She said she would not be at home the following morning, but that the price was all right and that Mr. Uhri would sign the contract for her as her agent. I went to the office and Mr. Baptiste agreed to hold the account till December. I then went back to Mrs. Uhri's home the following morning, but Mrs. Uhri was not at home. I advised Mr. Uhri that the Baptiste Tent and Awning Company would hold the account until Mrs. Uhri received the interest on her bonds, and advised Mr. Uhri that Mrs. Uhri said he would sign the contract for her as her agent. I accordingly wrote up the contract and Mr. Uhri signed the contract for Mrs. Uhri. Mrs. Uhri had advised me the previous day that she was the owner of the property, and that Mr. Uhri had nothing to do with it."

George Baptiste, plaintiff's president, testified that his ledger account of Wm. C. Uhri shows that he paid $25 on July 2, 1935; that the awnings were made in 1933, and in 1935 they paid this $25; that Wm. C. Uhri still owes a balance of $144.67 on the account for awnings and storage; that he made new awnings and put them up, and in the fall of 1933 took them down and stored them for the winter; that he received a check from Wm. C. Uhri for $25; that the check was written by Wm. C. Uhri and he credited him for it; that he credited it to the account of Wm. C. Uhri, and it was so entered on the book; that he received the check for $25 to apply on the account, but that he did not know who paid it; that he did not promise Mrs. Uhri to hold up payment of this account until December, 1933; that he did not promise her anything; that he never spoke to her and never saw her before the trial in the justice court; that he did not correspond with her, but with her husband; that during the time Charles Whitworth worked for him he brought in the Uhri order; that Mr. Whitworth did not say anything to him about it; that Mr. Whitworth brought in the order and put it on his desk; that Mr. Whitworth did...