Brown & Bigelow v. J. F. Laughead & Co.
| Decision Date | 13 June 1938 |
| Docket Number | No. 19227.,19227. |
| Citation | 118 S.W.2d 74 |
| Court | Missouri Court of Appeals |
| Parties | BROWN & BIGELOW v. J. F. LAUGHEAD & CO. et al. |
Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.
"Not to be published in State Reports."
Action by Brown & Bigelow, a corporation, against J. F. Laughead & Company, a corporation, and others to recover the balance of an account of merchandise sold by plaintiff to the named defendant and to recover upon a contract of guaranty signed by the other defendants. Judgment for plaintiff against the named defendant for $3,299.95 and against plaintiff as to the other defendants, and from the adverse part of the judgment, plaintiff appeals.
Affirmed.
Ira Lohman, of Jefferson City, for appellant.
Irwin, Bushman & Buchanan, of Jefferson City, and John P. Peters, of Linn, for respondents.
CAMPBELL, Commissioner.
This is an action to recover the balance of an account of merchandise sold by plaintiff to the defendant, J. F. Laughead & Company, a corporation, and to recover upon a contract of guaranty signed by the defendants Amie Maire, Paul B. Dessieux and J. W. Vogel.
The petition alleged that between May 27, 1935, and October 24, 1935, plaintiff sold and delivered to the defendant company merchandise of the agreed value and price of $4,089.27; that payments had been made on the account in the sum of $787.75; that the individual defendants, on or about April 5, 1935, and before the merchandise had been furnished to the corporate defendant, in consideration of one dollar and other valuable consideration, executed the contract of guaranty hereinafter described; that the amount remaining unpaid on said account was the sum of $3,301.52, for which judgment was prayed.
The answer of the individual defendants alleged they executed the written guaranty upon the representation they were bound thereby to pay for merchandise ordered by the corporate defendant's board of directors in a meeting held for that purpose; that plaintiff concealed the fact that it held orders previously placed with it in the amount of $3,000 by S. Bruce Morrison who had not been authorized to make such orders; and charged the acts of plaintiff were fraudulent.
The reply alleged the individual defendants Amie Maire, Paul Dessieux and J. W. Vogel were president, vice-president and secretary-treasurer, respectively, of their codefendant, and as such officers permitted the corporate defendant to accept the merchandise and pay 10 per cent of the purchase price at the time of delivery of the goods; and further joined issue on the defenses pleaded in the answer.
On the issues joined the cause was tried to a jury. The verdict was for the plaintiff in the sum of $3,299.95 as against the corporate defendant, and against the plaintiff and in favor of the individual defendants. Judgment was rendered in accordance with the verdict. The plaintiff has appealed from that part of the judgment adverse to it.
The contract of guaranty provided the individual defendants guaranteed payment to plaintiff in full of the account of the corporate defendant "covering any or all orders for all types of advertising manufactured by Brown & Bigelow at such prices as are mutually agreed upon as evidence by J. F. Laughead and Company, a Missouri corporation, orders signed by any officer of the company or S. Bruce Morrison."
Of the twelve errors charged only those relating to the refusal of plaintiff's requested instruction No. 1; the giving of defendants' instructions A, B, C, and D, and the overruling of plaintiff's motion for judgment, notwithstanding verdict, are developed in the brief. The errors not developed are abandoned. Wisman v. Hazel Dell Farmers Mut. Fire & Lightning Ins. Co., 230 Mo.App. 489, 94 S.W.2d 908, 910.
Plaintiff's requested instruction No. 1 would have directed a verdict against all of the defendants for the amount of the account remaining unpaid. The instruction was properly refused for reasons which will appear in our discussion of instructions given for the individual defendants, hereinafter called respondents.
Defendants' instruction A, in so far as it affected the respondents, told the jury that letters to plaintiff from the president of the defendant company in which he requested the time of payment of the account be extended or promised the corporation would pay the account could not be considered as a promise that the respondents would be responsible for the indebtedness.
The trial involved the question whether or not plaintiff was entitled to recover against the defendant company. On that issue the letters...
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...Strain at any time, whose actions, after knowledge, were the basis of the claim. Feeherty v. Sullivan, 129 S.W.2d 926; Brown & Bigelow v. Laughead, 118 S.W.2d 74. The court erred in commenting on the credibility and interest of the witness Whitmire, plaintiff's employer and the author of th......