Cut Rate Woolen Co. v. United States Tailoring Co.

• Decision Date: 19 January 1925
• Docket Number: (No. 15221.)
• Citation: 267 S.W. 969
• Parties: CUT RATE WOOLEN CO. v. UNITED STATES TAILORING CO.
• Court: Missouri Court of Appeals

267 S.W. 969

CUT RATE WOOLEN CO. v. UNITED STATES TAILORING CO.

(No. 15221.)

Kansas City Court of Appeals. Missouri.

January 19, 1925.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

"Not to be officially published."

Action by the Cut Rate Woolen Company, which changed its name to the Eller Woolen Company, against the United States Tailoring Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John C. Stearns, of Kansas City, for appellant.

Ringolsky, Friedman & Boatright, of Kansas City, for respondent.

BLAND, J.

This is a suit to recover the value of certain merchandise sold by plaintiff to the defendant. The case was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiff in the sum of $661.76, and defendant has tippealed. There was no declaration of law or finding of fact requested or given by the court, except defendant offered a demurrer to the evidence and now assigns the overruling of this demurrer as error.

Of course, the rule is well settled that in considering a demurrer to the evidence all of the facts and all proper inferences that may be drawn therefrom must be taken in their most favorable light to plaintiff. Stated in this light, the evidence shows as follows:

Plaintiff is a corporation located in Chicago and engaged in selling woolen goods at wholesale. Defendant is a merchant tailor in Kansas City, Mo., located at 800 Main street, and is a corporation owned by one Solomon Wall, who is its president. Prior to May 1, 1921, Wall's impecunious brother-in-law, one A. S. Olin, was in the employ of the defendant as a cutter, and on that day defendant and Olin entered into a written contract for the establishment of a branch store of "defendant at 1804 East Twelfth street in Kansas City under the name of "Sam, the Tailor." This contract recites that defendant employs Olin as manager of its branch store at a certain compensation therein named. At the end of each week Olin agreed to make a report to defendant of all purchases of goods or expenses attending the conduct of the business, and that he should "not incur any expenses or liabilities for goods, merchandise, labor or otherwise without first notifying" defendant and getting the consent of its president. Olin was not to incur any liability except with the written consent of Wall, president of the defendant company, "which shall be reported to the party of the first part (defendant) weekly during the pendency of this agreement."

Olin had no money or assets, but was indebted in the sum of $1,800. The business on Twelfth street was opened by defendant, the lease was taken in the name of Olin, but defendant advanced the first two months rent, installed the fixtures, and paid for them. The electric lighting of the store was arranged for by defendant, and the store was stocked with goods by the defendant. After the store was opened Olin told Wall that he could not sell suits of woolens furnished by defendant because the neighborhood in which the branch store was operated was in negro district, and his customers required a cheaper grade of goods than were carried at defendant's main store. Wall talked to Olin about buying this merchandise, and Olin told him, "If I can't sell the goods that you put in my store, I can't do any business." Wall made no reply. The latter: visited the store about once a week and looked over the stock. After buying the goods, Olin would tell defendant about it. In this way Olin purchased of plaintiff goods to the value of $655.75; of the American Woolen Goods Company of the value of $600; and from Stullman Bros. goods of the value of $400.

The purchase of the goods from plaintiff came about in this way: On June 17, 1921, a salesman representing plaintiff took an order for the goods from Olin at the Twelfth street store. The goods were sold on a cerdit basis, net 60 days after September 1, 1921. The salesman did not ask Olin in reference to his financial standing or as to who owned the business or anything concerning the same. Apparently the salesman thought that he was selling the goods to Olin for the reason that, after he took the order, he called the office of R. G. Dun & Co. in Kansas City to get it to send a financial report of "Sam, the Tailor—A. S. Olin" to plaintiff in Chicago. Wall testified that he informed the reporters of Dun & Co., or Bradstreet, that defendant was the owner of the business on Twelfth street, and that Olin was only the general manager. R. G. Dun & Co. reported to plaintiff that Olin was not engaged in business in Kansas City on his own account, but was employed on a salary as manager of the Twelfth street store, which was owned by defendant, and included in the information furnished facts showing that defendant was solvent and worthy of credit. Relying upon the information obtained from R. G. Dun & Co., plaintiff accepted the order and shipped the goods sued for to "Sam, the Tailor— A. S. Olin, 1604 East 12th street, Kansas City, Mo.," and charged the goods to that name. The goods were shipped on June 29th and July 13th. $50 was sent to plaintiff by Olin as a payment on the purchase price of the goods.

On July 26, 1921, Olin swore to a voluntary petition in bankruptcy, which was filed on the next day, and he was adjudged a bankrupt on the 28th. On the 26th Olin mailed three notes signed by himself to plaintiff covering the balance due on the bill. These notes were received and are still retained by the plaintiff; its agent testifying that they were retained merely as "additional security for the account."

On September 21, 1921, plaintiff, through its attorneys, wrote the defendant that before shipping the goods upon the order received from Sam, the Tailor, it obtained a report from the mercantile agency, and was informed by the agency that Sam, the Taylor, was under the active management of A. S. Olin, and owned by the defendant; that it had a claim for collection, and was informed that Olin had filed a petition in bankruptcy, and that the goods shipped by plaintiff were taken by the trustee in bankruptcy, and that it intended to file a claim in the bankruptcy case on the ground that the goods did not belong to Olin but belonged to defendant, and asked if defendant cared to co-operate with them in an effort to recover the merchandise, and that they expected to hold defendant liable for the merchandise above mentioned. Thereafter a claim was filed in the bankruptcy case, and after trial of the same, but before any decision was rendered by the referee, the claim was dismissed by plaintiff.

Wall testified that the written agreement had between defendant and Olin of May 1, 1921, was abrogated about May 25, 1921, and that defen...