"Pleadings.
"The second amended petition alleges that plaintiff is a corporation, and is the owner and operates coal mines near Springfield, Ill., and that the defendant McDermott Coal Company was organized in February, 1898, but at what time thereafter it was incorporated, if at all, plaintiff is not advised, and that defendant Edward McDermott at all the times mentioned in said petition conducted and transacted the business mentioned in said petition under the name of said McDermott Coal Company.
"Said petition further alleges that from and after July, 1896, till the end of the year 1898, Edward McDermott, acting and doing business as aforesaid, and the defendant the McDermott Coal Company, was the agent of plaintiff to handle and sell coal of plaintiff shipped by it to be sold and disposed of by defendant in the market at St. Louis, Mo., and points contiguous thereto, and that defendants accepted said employment, and during said time undertook to sell the coal so shipped and account to plaintiff for the proceeds of the sales thereof, and that for all such coal, except that sold to Nelson-Morris Packing Company, and for all said time except the months of September, October, November, and December, 1898, defendants were to receive ten cents per ton commission, and during the months last mentioned defendants were to receive five cents a ton commission; and for all said coal sold to said Nelson-Morris Packing Company defendants were to receive two and one-half cents a ton.
"Said petition then alleges that defendants, in making returns to plaintiff, retained a larger percentage than was agreed to as aforesaid, and converted and appropriated to their own use larger sums of money than they were entitled to, and that instead of making true statement of the prices at which they had sold said coal, made returns of prices lower than the price in fact received for said coal, and retained commissions far in excess of the commissions they were entitled to retain; and plaintiff only became aware of such fraud and deception the latter part of December, 1898, whereupon it stopped shipping any more coal to defendants, and plaintiff was not then fully apprised of the extent of said frauds and deception, and only learned afterwards of the parties to whom and the prices at which said coal had been sold and the amount of coal so sold to said parties, respectively, and as to many parties it has been unable to ascertain or obtain the evidence to establish said frauds and deception; that as to said parties with reference to whom plaintiff has been able to find evidence as to the extent of the transactions plaintiff files with its said petition a statement (Exhibit A) showing the number of tons sold by defendants to said parties, the prices obtained for same, and the prices reported by defendants to plaintiff, and the differences between the amounts defendants were entitled to receive and the amounts actually retained by them; that the amounts retained by defendants in excess of what they were entitled to retain aggregate $4,259.70, for which, with interest at six per cent. per annum from commencement of this suit, plaintiff asks judgment.
"For a second cause of action said petition alleges that defendant unlawfully charged and kept back $2 a car on 263 cars, amounting to $526, on a claim that plaintiff did not ship cars of coal enough to enable defendants to fill orders for coal, and that said deductions were illegally retained by defendants out of plaintiff's money, the items being
as follows: January 4, 1898, 38 cars, at $2 a car, $76; January 8, 1898, 92 cars, at $2 a car, $184; January 25, 1898, 53 cars at $2 a car, $106; January 29, 1898, 80 cars, at $2 a car, $160; and plaintiff asks for judgment under this count for $526 and interest on same from commencement of this suit.
"For a third cause of action said petition alleges that in the account, February, 1898, defendants illegally deducted $47.76 shortage on coal; that in the transaction of the business claims for shortages of coal were to be submitted to and approved by plaintiff before being allowed; that, notwithstanding the protest of plaintiff, defendants wrongfully retained said sum of $47.76 in said month, and never repaid same to plaintiff. Judgment is asked for this sum and interest thereon since commencement of this suit.
"For a fourth cause of action said petition alleges that defendants, for the months of September and October, November and December, 1898, wrongfully retained a commission of ten cents a ton on the coal sold by them for plaintiff, whereas by the terms of the agreement between plaintiff and defendants they were to receive a commission of but five cents a ton for said coal sold by them during the said months; that said moneys so wrongfully retained during said months were as follows: September, 1898, $325.41; October, 1898, $426.31; November, 1898, $462.50; December, 1898, $256.68 — making an aggregate of $1,430.90, for which with interest from commencement of this suit, plaintiff asks judgment.
"This petition concludes with a prayer for judgment for the aggregate of said four counts, viz., $6,254.36, with interest thereon from commencement of suit. Exhibit A, filed with said second amended petition, and referred to therein, purports to show the sales made by defendants of the coal of plaintiff to 30 different customers, giving the number of tons sold to each, with the dates of sale, and the amounts received by defendants for the coal, and the amounts remitted by defendants to plaintiff, the amount of authorized deductions, and the difference between the amounts remitted and the amounts that ought to have been remitted. These differences aggregate $4,259.70, the amount claimed under the first count of said petition.
"The answer of defendant Edward McDermott, after denying all the allegations of the second amended petition, alleges that he and Charles McDermott, as partners under the name of McDermott Bros. Coal Company, on February 6, 1896, made a contract with plaintiff for the sale and handling of plaintiff's coal in St. Louis; that on May 1, 1896, this defendant bought the interest of his said partner, and continued the business in the name of McDermott Coal Company; that on May 8, 1896, the said contract made with plaintiff was modified in these particulars: First, that plaintiff waived till January, 1902, the right which it had reserved to open a depot in the city of St. Louis for the sale of coal in wagon load lots; second, that plaintiff would not sell or deliver at its mines near Springfield to any person but the McDermott Coal Company; and that on March 1, 1897, the said contract was again supplemented so as to extend the territory of defendant embraced in said contract; and that on September 27, 1897, another supplemental contract was entered into between plaintiff and this defendant as the McDermott Coal Company, in which the contracts hereinbefore mentioned were all affirmed and ratified, and the assignment of the same to said Edward McDermott acknowledged and ratified by plaintiff; and that on February 9, 1898, the business of Edward McDermott was incorporated in the name of McDermott Coal Company, and defendant McDermott Coal Company became the owner of all the business and property of said company, and became the owner and holder of all the supplemental contracts and succeeded to all the rights and privileges and claims existing under said contract and supplemental contracts, and conducted said business with plaintiff, and received and sold said coal, and accounted to plaintiff for the proceeds thereof. Said answer further alleges that it was agreed between plaintiff and this defendant, on the 16th day of July, 1896, that there should be a departure from the several contracts between plaintiff and this defendant, in this: that plaintiff should sell to the defendant coal at a price then and there agreed upon between plaintiff and defendant, and that this defendant should take said coal at said prices and pay plaintiff therefor, and that in accordance with said agreement said coal so shipped by plaintiff to defendant up to the 9th day of February, 1898, was received and paid for by defendant under said agreement, which was fully understood by plaintiff and defendant, and each of said transactions was so closed out by plaintiff and defendant, and include all the transactions set out in the bill of particulars or exhibit filed with plaintiff's petition up to February 9, 1898; that it was understood by plaintiff and defendant that defendant should have for his compensation for the sale of said coal such profit as he would obtain over and above the price agreed upon and quoted from time to time from July 6, 1896, to February 9, 1898, and that plaintiff well knew this arrangement and method of doing business, and settled each account in accordance therewith.
"This...
