Cupples v. Whelan
| Decision Date | 31 January 1876 |
| Citation | 61 Mo. 583 |
| Parties | SAMUEL CUPPLES, Defendant in Error, v. ANDREW WHELAN, et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Circuit Court.
Bell & Thompson, for Plaintiffs in Error, cited in argument Debaun vs. Atchison, 14 Mo., 543; Smith's Merc. Law, 170; 1 Pars. Contr., 39-40 & 440; Rice vs. Groffman, 56 Mo., 434; Hazard vs Treadwell, 1 Str., 506; Todd vs. Robinson, 1 Ryan & M., 217; Gilman vs. Robinson, Id. 226; Dyer vs. Pearson, 3 B. & C., 38; Cruzan vs. Smith, 41 Ind., 288.
Krum & Madill, for Defendant in Error.
This was an action brought for the recovery of the value of certain personal property, consisting of 11,800 seamless bags, alleged to have belonged to the plaintiff, and to have been converted by the defendants. The evidence substantially showed that the plaintiff was a merchant doing business in wooden ware and willow goods, and that during the years 1870 and 1871, he had in his employment one Damon, who was a clerk and purchasing agent, and that between July 1st, and December 31st, 1871, Damon at various times bought twenty-eight different lots of seamless bags from different firms, amounting in all to 11,800, and had them charged to plaintiff whose cashier paid for them; that Damon never took the bags to plaintiff's store, but procured private conveyances and took them to the defendants. Damon bought the sacks for 32 and 32 1-2 cents and sold them to defendants at 20 cents for the first lot, 18 cents for some of the subsequent ones, but the most of them he disposed of for 15 cents. The defendants paid him the money, and he appropriated it to his own use.
For the plaintiff, the court instructed the jury that a larceny or embezzlement of property did not pass the title to it to the thief, or those claiming through him; and that no one could transfer to another a greater interest in the property then he possessed.
The jury were further instructed that if from the evidence it appeared that Damon wrongfully and fraudulently took and carried away the bagging from the stores of Bemis, Chase & Drew with the intent to convert the same to his own use, and make it his property without the consent of the owner thereof, then such taking and carrying away constituted a larceny of the bagging, and if Damon afterwards sold the bagging to defendants without the knowledge or consent of plaintiff, the owner thereof, and defendants afterwards sold the same and converted the proceeds to their own use, they acquired no title to the bagging through their purchase, and they were liable for the market value of the bagging at the time of the conversion.
Defendants asked four instructions which were all refused. The first told the jury, that if they believed from the evidence that Damon was in the plaintiff's employ, as his clerk, and as such was authorized by him to sell for him and in his name the sacks, and receive and receipt for the proceeds, then plaintiff could not recover. The second declared, that if Damon was in plaintiff's employ as his clerk, and in selling to the defendants the sacks, he was acting in the usual course of his employment as such clerk, what he did in selling and receipting for the sacks in plaintiff's name, was binding upon the plaintiff, and he could not recover. The third instruction asserted the proposition that if plaintiff in the year 1870 and 1871 held out and accredited to the world Damon as his agent, and by so holding him out defendants were led to deal with him, believing him to be the authorized agent of plaintiff; and Damon, under cover of such holding out, sold the sacks mentioned to defendants in plaintiff's name, and received payment for them, and receipted for such payment, then plaintiff was not entitled to recover, if defendant acted in good faith, and was guiltless of any part in the fraud practiced by Damon on his employer.
The fourth instruction was to the effect, that if Damon was in the employ of plaintiff in 1870 and 1871, as a clerk, and as such clerk he, prior to the sale of the sacks in controversy, sold for plaintiff to the defendants a lot of sacks, and collected the money on the sale and receipted for the bill; and plaintiff never informed the defendants that Damon had no authority to sell his goods and collect...
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...if any loss occurs by reason of any act of the supposed agent, the loss must fall on him whose conduct caused the mistake. [Cupples v. Whelan et al., 61 Mo. 583.] statute reads that the "bond among other conditions, shall be conditioned for payment of material, lubricants, oil and gasoline ......
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...settled that permitting another to hold himself out as having authority is sufficient to establish an agency as to third persons. Cupples v. Whelan, 61 Mo. 583; Brooks v. Jameson, 55 Mo. 505; Hull v. Jones, 69 Mo. 587; Bishop on Contracts, sec. 1091; Watson v. Hoosac Co., 14 Mo.App. 585; Ke......
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... ... and cases cited in Note 38; 21 R. C. L., pages 389-390, sec ... 34; Lamothe v. St. Louis Ry. & Dock Co., 17 Mo. 204; ... Cupples v. Whelan et al., 61 Mo. 583; Fanning v ... Cobb, 20 Mo.App. 577; Waters-Pierce Oil Co. v. Zinc ... Co., 98 Mo.App. 324. (5) The fact that ... ...
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...Smith Merc. Law [3 Ed.] ch. 5, sect. 4, p. 178; 2 Greenleaf on Evidence [10 Ed.] sects. 65, 67; Brooks v. Jameson, 55 Mo. 505; Cupples v. Whelan, 61 Mo. 583; Edwards v. Thomas, 66 Mo. 483. It is error to allow counsel in argument to the jury to appeal to prejudices foreign to the case made ......