Crosno v. Bowser Milling Co.
| Decision Date | 12 April 1904 |
| Citation | 80 S.W. 275,106 Mo.App. 236 |
| Parties | CROSNO, Respondent, v. BOWSER MILLING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Mississippi Circuit Court.--Hon. H. C. Riley, Judge.
Judgment reversed and cause remanded.
Russell & Deal for appellant.
J. W Bowser, the president and agent of the company, being dead at the time of the trial, Mr. Crosno, the plaintiff, could not testify as to admissions or conversations of Mr. Bowser. His testimony was wholly incompetent and prejudicial and instruction No. 8 was improperly given. Nichols v Jones, 32 Mo.App. 657; Williams v. Edwards, 94 Mo. 447; Vendover v. Baker, 121 Mo. 273.
Action for merchandise sold and delivered, as is asserted, to the defendant. The case originated before a justice of the peace, went to the circuit court and on a trial anew there resulted in a verdict and judgment for the plaintiff.
The defendant is a corporation that conducted several mills in 1900 and 1901 when the goods were furnished. One of the mills was near the village of Crosno, where the plaintiff kept a general store. The goods in question were obtained by the employees of the milling company on orders signed by John Hummell. The milling company kept an account with plaintiff through many months and various payments were made on the account between February and November, 1901, amounting to $ 800, leaving a balance of $ 87.28, for which this action was brought. The payments were by checks signed by Hummell. Sixty-two different orders for various articles, written and signed by Hummell and drawn on the milling company, were introduced in evidence. All the orders were addressed to the plaintiff, Crosno, and were for goods to be furnished from the store in payment for services rendered to the defendant by employees. There are some items in the account which Hummell obtained in person, or told Tilden Crosno, plaintiff's son, to let the men have.
The main contention of the defendant is that Hummell was not the agent of the Bowser Milling Company, but was an independent operator running the mill at Crosno on his own account and that he paid his employees by furnishing them the goods in question.
The trial court submitted the issue to the jury of whether Hummell was the agent of the defendant company, telling them the agency might be proved by circumstances and the course of dealing and that it was not necessary to show it by direct proof, which is the law.
Tilden Crosno testified that J. M. Bowser, who was president or general manager, must have known the account was charged to him or the company; that he had entire control of the business and that Hummell acted as the firm's agent. The effect of that testimony was weakened by a statement that he had never had any conversation with Bowser about the business and did not know whether Bowser knew the merchandise was ordered charged to the company. Plaintiff testified that Bowser was the general manager of the company and had many men working for him; that he had other mills running in his name and that Hummell managed the mill near his (Crosno's) store. Said witness testified to a conversation with Bowser in which he (plaintiff) asked for the mill trade. Bowser said he would send a man to manage the mill in a few days and the manager would place orders with Crosno. A few days afterwards Hummell appeared and told plaintiff he had come to run the mill for the Bowser Milling Company and that Bowser had directed him to arrange with Crosno for...
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