Dell-Wood Tires v. Riss & Co.
| Decision Date | 17 December 1946 |
| Docket Number | 27009 |
| Citation | 198 S.W.2d 347 |
| Parties | DELL-WOOD TIRES, Inc., v. RISS & CO., Inc |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Mattingly Berthold, Jones & Richards and Douglas H. Jones, all of St Louis, and M. D. Campbell, of Kansas City, for appellant.
R. G Church, of St. Louis, for respondent.
This is a suit for a balance of $ 540.72 on an account. The suit was commenced on November 16, 1944, before a justice of the peace, whence it went on appeal to the circuit court. The trial anew in the circuit court, without a jury, resulted in a judgment in favor of plaintiff for $ 540.72, with interest amounting to $ 39.19, aggregating $ 579.91. Defendant appeals.
Plaintiff is a Missouri corporation engaged in buying and selling tires and tubes and other automobile accessories, and having its office and place of business in St. Louis. Defendant is a Missouri corporation, having its chief office and place of business at 124 West Fourth Street, in Kansas City. It is a common carrier of freight by trucks. It is engaged in both interstate and intrastate transportation. It has a terminal at 1531 North Eleventh Street, in St. Louis. It also has terminals on its routes in many other cities throughout the country.
The account sued on consists of sixteen items covering sales of tires and tubes over a period from May 1 to July 7, 1944. The items are shown by invoices and ledger entries, put in evidence by the plaintiff, as follows:
May
1 invoice
8166
$ 342.71
8167
43.87
8175
79.15
16
9411
170.06
18
9441
2.00
18
9464
2.00
22
9545
4.60
24
9606
197.54
27
9709
190.60
June
16
9906
314.96
21
0691
37.30
21
0699
174.90
22
0725
18.34
22
0726
23.30
23
0778
4.67
July
7
8816
126.12
$ 1,732.12
The ledger entries show credits as follows:
May 25
$ 4.60
June 19
170.06
21
279.15
July 26
190.60
Aug. 5
200.00
Oct. 21
302.03
23
11.24
24
33.72
This leaves a balance of $ 540.72, for which amount plaintiff sues.
Defendant during the running of the account, had a route from St. Louis to Kansas City and on west to Denver. It also had a route from Chicago through St. Louis to Oklahoma City. It was authorized by the Interstate Commerce Commission to operate over these routes. It was also authorized by the Missouri Public Service Commission to operate over these routes through Missouri. It appears that the Acorn Transportation Company, a Missouri corporation, through an arrangement with the defendant, operated over the route between St. Louis and Kansas City, carrying for defendant whatever freight was consigned to it for transportation over that route, and that the 66 Transportation Company, a Missouri corporation, operated over the route from Chicago to Oklahoma City, carrying for defendant whatever freight was consigned to it for transportation over that route. These arrangements were made on November 1, 1943.
Defendant filed no pleading in the case, but its trial theory is shown by what its counsel said in his opening statement to the court at the commencement of the trial, as follows: 'On behalf of Riss & Company, the defendant, we believe that the dispute is really on the question of principal and agent, and whether or not the people to whom Dell-Wood Tires sold tires were in any way the agents, employees, or in any way connected with Riss & Company so as to make Riss & Company responsible for anything they bought or purchased.'
W. H. Dell, plaintiff's president, testified for plaintiff that at the time the first sale was made H. M. Cahill came out to his office and told him he was the manager of Riss & Company here in St. Louis, that he represented Riss & Company and he was manager of Riss & Company in St. Louis and would be glad to do business with him, that he would like the business to be on an open account, and that he would be glad to give him business from time to time; that upon each sale a duplicate invoice was made showing the articles purchased and the amount of the purchase; that one copy of the invoice was kept in the office of his company and the other was sent to Riss & Company at its St. Louis office; that the invoices kept at his office were put into a bound volume, and that ledger entries were directly made by the bookkeeper from these invoices when the sales were made; that these things were done in the regular course of business; that he did not personally handle all of the sales made to Riss & Company; that he had a salesman in his employ who handled some of the sales, but that he was present at his place of business practically at all times and kept in close touch with the business; that the salesman was no longer in his employ, nor was the bookkeeper; that he was acting in the management of the firm and was at its place of business practically all the time; that at times, when sales of tires or tubes were made, they were delivered at his place of business to the drivers of the trucks for which they were purchased; that in such cases the drivers of the trucks receipted for the tires or tubes by signing the invoices, which were made out to Riss & Company; that at times the tires or tubes were delivered at Riss & Company's place of business in St. Louis; that in such cases the tires or tubes were receipted for by some one in the office.
It was conceded at the trial that the trucks used in the carrying of freight over defendant's routes and to which tires or tubes were delivered by plaintiff had painted upon them in large letters 'Riss & Company.' It was also conceded that there was painted across the front of defendant's office in St. Louis in large letters, eighteen to twenty-four inches high, 'Riss & Company.' There was no other name appearing anywhere about the office building. There was no sign of any kind showing that either the Acorn Transportation Company or the 66 Transportation Company was in any way concerned with the business transacted there. These firms and the nature of their connections with the business of Riss & Company were wholly unknown to the public. The office was listed in the telephone directory in the name of Riss & Company, and when calls went in the office over the telephone they were invariably answered 'Riss & Company,' and when the callers asked for the manager they were referred to H. M. Cahill. All of the business was transacted in the name of Riss & Company. No other name was ever used. All of the sales of tires and tubes for which plaintiff sues were authorized by certificates issued by the War Price and Rationing Board of Jackson County, or the City of St. Louis, to 'Riss & Company.' The certificates were endorsed 'Riss & Company, Agent, H. M. Cahill,' or 'Riss & Company, Agent, C. Nahmenson.' The certificates were obtained by defendant or with its authority and delivered to plaintiff as evidence that it was authorized to sell to defendant the tires and tubes for which plaintiff sues. Mr. Cahill carried a business card, which he used in the transaction of business, reading as follows: 'Harold M. Cahill, St. Louis, Missouri, district manager Riss & Company.' He testified, as a witness for defendant, that he was district manager of Riss & Company with respect to the transportation of freight but not with respect to the purchase of tires and tubes and other accessories for trucks used in the transportation of freight; that he was president of the Acorn Transportation Company, and that the tires that he purchased from plaintiff were purchased for and on behalf of that company, and that he so notified Mr. Dell, plaintiff's president, some time between June 1 and June 15, 1944. Mr. Dell, however, denied this, and stated that he had no notice whatever that any of the purchases were made for or on behalf of any company other than Riss & Company.
For the purchase of gasoline for use in the operation of trucks, ration certificates were issued to Riss & Company. Some of these were used for the purchase of gasoline at the St. Louis office and others were delivered to the drivers of trucks to be used by them in the purchase of gasoline along the routes. Mr. Cahill testified that C. Nahmenson was president and manager of the 66 Transportation Company and that E. O. Gunn was joint dock foreman for 66 Transportation Company and Acorn Transportation Company; that a rubber stamp was kept at the St. Louis office which was used to receipt for all freight received for transportation. The stamp reads 'Received, Riss & Company.' The stamp when applied was initialed by some one in the office. It was used in two instances on invoices for tubes delivered at the office by plaintiff. In each instance the stamp was initialed 'E. O. G.' Mr. Cahill testified that these were the initials of E. O. Gunn.
Walter G. Wilkins, vice president of the plaintiff, testified, for plaintiff, that some time after the account sued on was closed, he went to the defendant's office in St. Louis and talked with Mr. Cahill about the balance remaining due and unpaid on the account, which then amounted to $ 887.71 that he had two conversations with Mr. Cahill; that he called Mr. Cahill over the telephone and asked about the account and asked when the balance would be paid; that Mr. Cahill told him that he was going to Kansas City that week and he would see Mr. Riss of Riss & Company and upon his return would let him know what the disposal of the account would be; that after Mr. Cahill returned he did not hear from him regarding the account so he went down to the office of Riss & Company and asked for Mr. Cahill and was escorted into Mr. Cahill's office and met him and again asked him about the account; that that was after July -- some time in the late summer or early fall, and he asked Mr. Cahill...
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