Chambers v. Short

• Decision Date: 31 October 1883
• Citation: 79 Mo. 204
• Parties: CHAMBERS, Appellant, v. SHORT.
• Court: Missouri Supreme Court

79 Mo. 204

CHAMBERS, Appellant,

v.SHORT.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

F. A. Sampson for appellant.

Snoddy & Short for respondent.

HENRY, J.

This is an action on account for twenty-five parts of Dorè's Gallery, at $1 per part, and for binding two volumes of the same at $12.50 per volume. The answer pleaded payment. The court tried the cause without a jury, and the finding and judgment were for defendant, and plaintiff has appealed to this court.

The evidence for plaintiff was that the agent, who sold the books by subscription, had no authority to receive payment for them; that in August, 1878, plaintiff received from defendant, by express, twenty-five parts of Dorè's Gallery with directions to add twenty-five other parts and bind them. Before doing the work plaintiff heard that the agent who sold the books, as a canvasser, was indebted to defendant, and fearing that defendant would seek to set-off his demands against the canvasser against plaintiff, he wrote to defendant, inquiring if the canvasser was indebted to him, and received an answer, stating that he was not, for borrowed money or anything else. The testimony of Tate was that for plaintiff he delivered the bound volumes to defendant, at Sedalia, and told him the charge on them was $50, that Short said “Very well,” or “All right,” and directed witness to take them to his house and call at his office, Monday following; and when witness went to defendant's office, Monday morning, defendant said he had paid the canvasser for them. He further testified, without objection, that it was not customary for persons canvassing for books to receive the money for them, but subscribers pay on the delivery of the books.

The defendant testified that when he made the contract for the books with the canvasser, the latter had eight parts ready for delivery; that defendant took them and paid for them; that the canvasser said he could get the books up to twenty-five parts; that witness had him to do so and paid for them; that witness wanted to get the entire work, fifty parts, bound in morocco, and asked the canvasser what he would sell it for, so bound, and he said he would write and ascertain, and subsequently came to defendant and said, with a letter in his hands, which he said was an answer from plaintiff, that the price would be $70; that they finally agreed upon $60, the canvasser agreeing to give defendant the benefit of his commission and defendant paid for the entire set and the binding. He also contradicted Tate, stating that the first time the charge of $50 was mentioned by Tate, was at defendant's office, after the delivery of the books, and that he then told Tate he had paid the canvasser in full. This was all the evidence.

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