Darling & Co. v. Fry, 4685.

• Decision Date: 17 February 1930
• Docket Number: No. 4685.,4685.
• Citation: 24 S.W.2d 722
• Court: Missouri Court of Appeals
• Parties: DARLING & CO. v. FRY.

24 S.W.2d 722

DARLING & CO. v. FRY.

No. 4685.

Springfield Court of Appeals. Missouri.

February 17, 1930.

Appeal from Circuit Court, Greene County; Warren White, Judge.

"Not to be officially published."

Action by Darling & Co. against T. P. Fry. Judgment for defendant, and plaintiff appeals. Affirmed.

Mann & Mann and John W. Miller, all of Springfield, for appellant.

Wear & Benton, of Springfield, for respondent.

BAILEY, J.

This is an action for conversion. Plaintiff, Darling & Co., is an Illinois corporation. The defendant, T. P. Fry, is an individual, who at the times hereinafter mentioned was employed by the Bois D'Arc Farmers' Association, a corporation of Missouri. Plaintiff was engaged in the manufacturing and selling of commercial fertilizer.

By its petition, plaintiff alleges that on or about the 17th day of February, 1925, plaintiff entered into a certain written consignment agreement with the Bois D'Arc Farmers' Association, by the terms of which said association was and became agent or factor for plaintiff to handle and sell plaintiff's products; that in said contract it was agreed that goods shipped to the Bois D'Arc Farmers' Association were to be sold for the account of plaintiff and that the title to the goods should remain and be in plaintiff, and that all moneys, credits, etc., received for such products so sold for plaintiff by said association should be the property of plaintiff and the account thereof kept separate from all other accounts and money of said Farmers Association; and that an accounting should be made twice each year.

It is further alleged that in December, 1926, defendant became the manager and executive officer of the Bois D'Arc Farmers' Association and had charge of its affairs, books, papers money, notes, and other evidences of indebtedness, and conducted the business affairs of said association; that he had charge of, and was authorized to and did draw checks upon, its funds; that he deposited such funds in its bank and had charge of all collections and disbursements; that, as such manager, defendant "knew or was bound to know of the contract entered into aforesaid between plaintiff and the Bois D'Arc Farmers' Association and the terms thereof."

It is further alleged that while defendant was acting as manager of said association, plaintiff shipped to said association, under the terms of said contract, two carloads of fertilizer, for which there was due plaintiff the net sum of $794.26; that after the receipt of said two cars of fertilizer, defendant as manager sold same to the customers of the said Bois D'Arc Farmers' Association and collected the money therefor, which money belonged to plaintiff herein under the contract aforesaid and should have been accounted for to plaintiff; that it was defendant's duty as manager of said association to see that same was accounted for; that defendant, "knowing that said money was held in trust by the Bois D'Arc Farmers' Association for the plaintiff herein, knowingly, wrongfully and willfully converted said money and used it for other purposes unknown to this plaintiff and failed and refused to pay and send same to this plaintiff or make any accounting thereof but, as aforesaid, instead wrongfully diverted it into other channels."

It is further alleged that, by reason of said facts, defendant is personally liable; that the Bois D'Arc Farmers' Association thereafter became and is insolvent and has never accounted for or paid said money to plaintiff. The answer was a general denial. This case was tried to a jury and resulted in a verdict and judgment for defendant, from which judgment plaintiff has appealed.

In plaintiff's assignment of errors it is first charged that the court erred in refusing plaintiff's instruction A, being a peremptory instruction to find the issues for plaintiff. A consideration of this point requires a review of the evidence. There was evidence tending to show that in the beginning of the year 1927, defendant was first employed as manager of the Bois D'Arc Farmers' Association, and that he had complete charge of the business of said association in buying and selling of products; that he had charge of the association's bank account and drew all checks that were drawn on it after the first of the year 1927, and continued to act as manager until July 18, 1927. The consignment agreement referred to in plaintiff's petition was entered into February 17, 1925, and provided that it might be terminated by either party at any time upon 60 days written notice.

Plaintiff's salesman, one D. K. Lange, testified that at the time he took the order from defendant for the fertilizer in question he explained the contract to defendant, and that the fertilizer was shipped under the terms of that contract. There was also evidence that defendant did, for a time, keep the funds derived from the sale of plaintiff's fertilizer in a separate account until as much as $400 or $500 had accumulated, which was then deposited by defendant in the general bank account of the Bois D'Arc Farmers' Association, along with other funds; there was also other evidence tending to prove defendant had some knowledge of the written selling agreement. On the other hand, defendant denied any knowledge of such agreement or that he knew he was supposed to send any money that might be...