Beck & Sons Feed & Seed Co. v. Musick

• Decision Date: 05 June 1928
• Docket Number: No. 20130.,20130.
• Citation: 7 S.W.2d 307
• Parties: H.W. BECK & SONS FEED AND SEED COMPANY, A CORPORATION, RESPONDENT, v. ELMER L. MUSICK, APPELLANT.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

7 S.W.2d 307

H.W. BECK & SONS FEED AND SEED COMPANY, A CORPORATION, RESPONDENT, v. ELMER L. MUSICK, APPELLANT.^*

No. 20130.

St. Louis Court of Appeals. Missouri.

Opinion filed June 5, 1928.

Appeal from the Circuit Court of the City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED AND REMANDED.

Alvin Goldman and Louis E. Zuckerman for appellant, Elmer L. Musick.

(1) The court erred in giving and reading to the jury instruction No. 1, on behalf of and asked by plaintiff, for the reason that it assumed disputed facts and was broader than the evidence. Friend v. Jones, 185 S.W. 1159; Bixler v. Wagster, 256 S.W. 520; Hendry v. Judge & Dolph Drug Co., 245 S.W. 358; Fields v. Thomas, 286 S.W. 133; Culver v. Minden Coal Co., 286 S.W. 745; Beggs v. Shelton, 155 S.W. 885, 173 Mo. App. 127; Burt v. Gabbert, 160 S.W. 838; Drake v. Milton Hospital Ass'n, 178 S.W. 462, 266 Mo. 1; Smith v. Southern, 236 S.W. 413; Arnson v. Maryland Casualty Co., 280 S.W. 724; Cody v. Wells, 280 S.W. 83; Finley v. Continental Insurance Co., 299 S.W. 1107; Sullivan v. Gault, 299 S.W. 1116; State ex rel. v. Becker, 1 S.W. (2d) 103; First National Bank of Elyria v. Equipment Co., 285 S.W. 779; Rey v. Fayette R. Plumb, Inc., 287 S.W. 783; Ross-Saskatoon Lumber Co. v. Turner, 253 S.W. 119; Laughlin v. Gorman, 239 S.W. 548; Arkla Lumber Co. v. Henry Quellmalz Lbr. Co., 252 S.W. 961; Martin v. Woodlea Inv. Co., 226 S.W. 650; Martin v. Am. Magnestone Corp., 247 S.W. 465; Shull & Chipps Abstract Co. v. Schneider, 258 S.W. 449; Wood v. Great Am. Ins. Co., 279 S.W. 205; Van Zandt v. St. L. Whol. Grocer Co., 190 S.W. 1050, 196 Mo. App. 640; Reel v. Consolidated Inv. Co., 236 S.W. 43. (2) The court erred in failing and refusing to give and read to the jury instruction No. D, asked by defendant Musick. Friend v. Jones, 185 S.W. 1159; Cody v. Wells, 280 S.W. 83; Arnson v. Maryland Casualty Co., 280 S.W. 724. (3) The court erred in admitting in evidence plaintiff's Exhibits A, B, C, E and F, over the objections and exceptions of defendant, for the reason that these exhibits were the dray tickets offered for the purpose of proving delivery to Musick of the items of hay, grain and mill feed therein mentioned, but there was no evidence of personal delivery to defendant Musick, and the dray tickets were not signed by him, but were signed personally by one Armsted Arnold, Jr., and were so offered and admitted in evidence without first showing that said Arnold was the agent of Musick for the purpose of receiving and accepting the items therein mentioned, with authority from Musick to accept and receive the same, and to bind Musick for the purchase price thereof. First National Bank v. Equipment Co., 285 S.W. 779.

George F. Beck for respondents.

(1) The evidence tended to prove, and the jury found: (a) that Mr. Musick bought the feed for his horses of the H.W. Beck & Sons Feed and Seed Company; (b) that Mr. Musick employed the two colored men, Arnold and Sam, to feed and take care of his horses; (c) that the feed set out in the account was delivered at Dr. Gadsby's farm for Mr. Musick; (d) that the prices charged are reasonable; and (e) that $159.36 was credited as paid on account, leaving $700.37 less $99.72, not proved, the balance of $600.65 due respondent as found by the jury. (2) Instruction D was properly refused. This instruction, in effect, would have required the jury to bring in a verdict for the defendant unless they believed Arnold had authority to sign the dray tickets. The instruction is bad because it singles out one fact to the exclusion of all other facts introduced in evidence and tells the jury that unless Musick authorized Arnold to sign the dray tickets he would not be liable for the feed. The court could not have held, as a matter of law, that there was no other evidence from which the jury might infer delivery. 38 Cyc, p. 1675.

NIPPER, J.

This suit was instituted by plaintiff against the defendant, Elmer L. Musick, and one William C. Gadsby. Defendant Gadsby testified as a witness for plaintiff in the trial of the case, and at the close of the whole case the plaintiff voluntarily dismissed as to Gadsby, and the case went to the jury as to the present defendant, and there was a verdict and judgment for plaintiff, from which defendant Musick has appealed.

The petition seeks to recover for certain hay, grain, and mill feed, sold and delivered to defendant, as shown by an itemized statement of the same set out in the petition. It is alleged that defendant owed plaintiff $859.73, and that payments on this amount had been made to the extent of $159.36, leaving a balance of $700.37. Plaintiff asked judgment for this sum with interest at six per cent.

The answer of the defendant, Musick, was a general denial, and an allegation that the alleged sale of goods was for a price upwards of $30, and that there was no note or memorandum in writing made of the sale, in accordance with the provisions of section 2170, Revised Statutes Missouri, 1919; that he did not buy the goods alleged to have been sold and delivered by plaintiff; that he didn't give anything in part payment, and that he was not liable to plaintiff on account thereof.

The facts, as we gather them from Dr. Gadsby and other witnesses who testified for plaintiff, are that Dr. Gadsby is a veterinarian living at Kirkwood, in St. Louis county, and trains, breeds, and sells horses. He keeps from twenty-five to thirty-five horses on his farm most of the time. Dr. Gadsby and the defendant attended a sale of horses at Lexington, Kentucky, in the spring of 1920. Defendant bought five or six horses which were shipped back to Gadsby's farm. When they were in Kentucky they had two colored men with them, referred to in the testimony, as Sam and Arnold. These colored men were employees of Dr. Gadsby, and had been for a number of years. When they were ready to ship these horses back to St. Louis, Dr. Gadsby testified that he told defendant the expense of keeping these horses would be very high if he paid him (Gadsby) what he charged for taking care of horses; that if defendant wanted him to do so he would rent him the stalls and he (defendant) could use Arnold and Sam to take care of the horses; that defendant accepted the proposition and he charged defendant so much for the stalls and defendant hired the two colored men to take care of these horses for him at Gadsby's farm in St. Louis county for three months; that these two men, Arnold and Sam, were during that time working for defendant, who paid them, and that he, Gadsby, did not pay the men anything while they were taking care of the defendant's horses.

The testimony discloses that feed would be delivered to Gadsby's farm, and Sam or Arnold, most of the time Arnold, would sign the dray tickets. These tickets were introduced in evidence, showing the amounts sued for, but the evidence discloses that one $10 item was delivered to a roofing company, of which defendant was an official. Sam and Arnold left Gadsby's employ when defendant's horses were taken away, after they had been kept there for about three months.

It appears, that Dr. Gadsby keeps a farm of about seventy acres in St. Louis county, and that people bring their animals to him for the purpose of breeding, training, etc. Dr. Gadsby also buys his feed from the plaintiff company. Dr. Gadsby testified that Sam and Arnold did not work for him during the ninety...