Bledsoe v. Letson

• Decision Date: 04 November 1919
• Docket Number: No. 14196.,14196.
• Citation: 215 S.W. 513
• Parties: BLEDSOE v. LETSON et al.
• Court: Missouri Court of Appeals

215 S.W. 513

BLEDSOE v. LETSON et al.

No. 14196.

St. Louis Court of Appeals. Missouri.

November 4, 1919.

Appeal from Circuit Court, Audrain County; Ernest O. Gantt, Judge.

"Not to be officially published."

Action by John Bledsoe against A. G. Letson and ethers. From an order granting plaintiff's motion for a new trial after verdict for defendants, defendants appeal. Affirmed.

Clarence A. Barnes, of Mexico, Mo., for appellants.

R. D. Rodgers, of Mexico, Mo., for respondent.

BECKER, J.

Plaintiff commenced this action in the circuit court of Audrain county against A. G. Letson and Mary Letson, doing business under the name of Pioneer Stock Powder Company, alleging that whether they were sol doing business as partners or joint individuals plaintiff was not informed. Mary Letson' was not served and did not enter her appearance. It is further averred that under the name of Pioneer Stock Powder Company defendants entered into a contract with the plaintiff 337 which they employed him as their exclusive agent to sell their stock powders, manufactured by them at Bloomington, Ill., in certain parts of Monroe and Andrian counties, in this state, for the term of one year from October 11, 1911. It is further averred:

"That, to induce plaintiff to enter said contract and execute the notes hereinafter mentioned, defendants falsely and fraudulently represented and guaranteed that said Pioneer Stock Powders would cure and were a sure cure for hog cholera and other hog diseases; that they would furnish plaintiff their said stock powders at $6 per hundred; and that plaintiff was to sell the same for defendants at not less than $10 per ton, with a clear profit to plaintiff of $4 per ton. Plaintiff states that on said representation on the part of the defendants he was, about October 11, 1911, induced to and did order 14,000 pounds of said stock powders at $6 per hundred, and 50 gallons of sheep dip at 80 cents per gallon."

It is further averred that upon ordering these articles defendants required plaintiff to execute, and plaintiff did execute and deliver to defendants under their trade-name, two notes of $140 each, dated August 30, 1911, one payable five and the other six months after date, and three other notes, dated October 11, 1911, for $200 each, payable four, seven, and ten months after date respectively, all of said notes bearing compound interest at the rate of 7 per cent. per annum, and all payable to the order of the Pioneer Stock Powder Company; that under the contract defendants agreed to receive back all of the stock powders and dip that plaintiff did not sell during the year, and pay back to plaintiff or credit the same on the notes at the price of $6 per 100 pounds for the stock powder and 80 cents per gallon for the dip, and pay the costs of such as were returned; that under the agreement defendant shipped to plaintiff 2,500 pounds of the stock powder and 35 gallons of the dip, but never delivered to plaintiff any other or further part of the stock powder or dip; that plaintiff diligently worked to sell the stock powder and dip, but was not able to sell the stock powder, because it was worthless and would not do what it was represented to do and did not cure hog cholera or any other disease of hogs and was wholly worthless; that at the close of the year the plaintiff returned to the defendants 800 pounds of the stock powder, which he was unable to sell because it was worthless; that the 1,700 pounds of stock powder he did not return amounted in value to $102, and the 35 gallons of dip to $28, making a total of $130.

Plaintiff avers that he has paid the note of $140 and has paid in full the price of all of the stock powder he did not return and paid in full for the 35 gallons of dip received by him, paying $10 over and above the amount due for these articles, and that the defendants did not furnish or deliver to plaintiff any part of the 14,000 pounds of stock powder other than 2,500 pounds or any part of the dip except 35 gallons, for all of which plaintiff has paid defendants in full.

Plaintiff further avers that the defendant had negotiated four of the notes above mentioned to innocent parties for value before maturity, for the purpose of defrauding him out of the amount of the notes and interest, by preventing him from making a defense to the same, that the holder of two of the $200 notes had instituted suit on them in Monroe county and there obtained judgment against plaintiff in the sum of $450, which plaintiff had paid, and that the remaining two notes, one for $140 and one for $200, had been sold and transferred to innocent purchasers before maturity for a valuable consideration, so that plaintiff will be compelled to pay them. Plaintiff further alleges that he is solvent and able to pay any judgment against him on account thereof, and avers that the defendants have defrauded him out of the amount of money represented in said notes to his damage in the sum of $856, for which, with interest, he demands judgment.

The defendant A. G. Letson filed a verified plea in abatement, on the ground that he, when served, was in attendance at court, in the courthouse of Audrain county, under a subpoena, and was then and is now a citizen and resident of Illinois. Various other grounds going to the manner of service are also set up. This plea, coming on for hearing, was submitted to the court and overruled, defendant excepting. The case afterwards came on for trial before the court and a jury, the defendant refilling his plea in abatement accompanied by a denial of all of the allegations contained in the petition. To this plaintiff filed a reply denying all the allegations contained therein.

It is stated in the abstract that at the trial plaintiff introduced evidence tending to sustain the...