Beall v. Miller

• Decision Date: 04 April 1921
• Parties: RALPH BEALL and J. G. BRINKMAN, a co-partnership, doing business under the name of THE TRIUMPH PRINTING COMPANY, Respondents, v. M. T. MILLER, Appellant
• Court: Kansas Court of Appeals

230 S.W. 357

207 Mo.App. 32

RALPH BEALL and J. G. BRINKMAN, a co-partnership, doing business under the name of THE TRIUMPH PRINTING COMPANY, Respondents, v. M. T. MILLER, Appellant

Court of Appeals of Missouri, Kansas City

April 4, 1921

Appeal from the Circuit Court of Jackson County.--Hon. Thomas B Buckner, Judge.

AFFIRMED.

Judgment affirmed.

Garnett & Robinson for respondents.

Stubenrauch & Hartz for appellant.

OPINION

ARNOLD, J.

This is a suit on an alleged contract or agreement. Action was begun before a justice of the peace upon the following statement (omitting formal matters):

"Plaintiffs for their cause of action against the defendant state that on or about the 11th day of March, 1918 defendant entered into a certain agreement with plaintiffs whereby plaintiffs were to print two thousand five hundred (2500) copies of a booklet, known as Soldiers' and Sailors' English-French Guides, at ten cents (10c.) a copy, aggregating two hundred and fifty dollars ($ 250) which were to be completed on or about April 1st, 1918. Plaintiffs further state that the work was completed by them, defendant was notified of the same on or about April 1, 1918, and delivery was tendered, but defendant refused to accept the booklets and refused to pay for them, and still refuses to pay for the same."

Plaintiffs prevailed in that court and defendant appealed to the circuit court, the cause being tried at the May term thereof, 1920. The cause was tried by the court without the intervention of a jury, the issues were found for plaintiffs and defendant appealed to this court. A motion for a new trial was duly filed and overruled by the court.

Defendant gives as his reasons for asking a new trial, among others, that the judgment was against the weight of the evidence and that the court erred in admitting the contract or agreement offered by plaintiffs, for the reason that the same did not constitute a legal, binding contract or agreement, binding defendant in favor of plaintiffs.

Plaintiffs were engaged in the business of commercial printing under the name of the Triumph Printing Company, and the testimony tends to show that on or about March 11, 1918, defendant entered into a certain agreement with them whereby plaintiffs were to print 2500 copies of a certain booklet, entitled Soldiers' & Sailors' French-English Guide, at 10cts. a copy, to be completed on or about April 1, 1918; that defendant was notified of the completion of the work, and an attempt made to deliver the same, but acceptance was refused by defendant, as well as payment therefor. Plaintiffs identified and introduced in evidence the following letter:

"Kansas City, Mo., March 9, 1918

"Wolfe & Taylor,

City.

"Gentlemen: I hereby agreed to order from the Triumph Printing Company, Kansas City, Missouri, 2,500 Soldiers' and Sailors' English-French Guides at ten cent per copy, delivered at 423 Reserve Bank Building, on about April 1st, 1918. Same to be paid for on delivery.

M. T. MILLER SALES COMPANY

by M. T. MILLER."

Wolfe & Taylor, to whom the letter is addressed, as shown by the evidence, were the authors of the booklet mentioned in the communication. The only other evidence introduced on behalf of plaintiffs was the testimony of Ralph Beall, one of the plaintiffs. None was introduced on behalf of defendant.

The law is quite well settled that where a court in trying issues sits as a jury and gives a general verdict, as in this case, that the only way in which errors can be corrected, if the court decides erroneously, or makes a misapplication of the law to the facts, is to ask instructions in order that the reviewing court may see on what theory the issues were tried. [Olive St. Bank v. Phillips, 179 Mo.App. 488, 162 S.W. 721; Chrisman v. Scholl, 177 Mo.App. 58, 60, 164 S.W. 131; Jordan v. Davis, 172 Mo. 599, 72 S.W. 686; Brix v. Fidelity Co., 171 Mo.App. 518, 524, 153 S.W. 789; Wm. Huke Mfg. Co., v. Baltimore & O. R. Co., 146 Mo.App. 355, 123 S.W. 943.]

The only finding of the court, so far as the record shows, is as follows: "Wherefore it is ordered and adjudged by the court that the plaintiffs do have and recover of and from defendant, and E. K. Bonebrake and A. S. Miller, sureties on defendant's appeal bond herein, the sum of two hundred sixty-six dollars and twenty-five cents ($ 226.25), together with its costs incurred in this action and have therefor execution."

Defendant charges in his motion for a new trial and here complains that the...