Friesz v. Fallon

• Decision Date: 01 February 1887
• Citation: 24 Mo.App. 439
• Parties: HENRY FRIESZ, Respondent, v. JOHN F. FALLON, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 439

HENRY FRIESZ, Respondent,

v.JOHN F. FALLON, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

ROWE & MORRIS, for the appellant: The verdict is unsupported by the evidence, and should not be allowed to stand. The State v. Musick, 71 Mo. 401; The State v. Zorn, 71 Mo. 415; Stumpf v. Mueller, 17 Mo. App. 283. The verdict is the result of passion or prejudice, or the instructions given by the court were wholly disregarded. Price v. Evans, 49 Mo. 396; Lionberger v. Pohlman, 16 Mo. App. 393, 398; Borgraefe v. Supreme Lodge, 22 Mo. App. 127.

HENRY BOEMLER, for the respondent: Where there is evidence legally sufficient to justify the court in allowing the case to go to the jury, a verdict for the plaintiff can not be set aside by the appellate court as unsupported by evidence. Schulte v. Railway, 5 Mo. App. 578. Where the record contains evidence both ways upon a disputed question of fact, the judgment ought not to be reversed on the ground that it is against the weight of evidence. Perkinson v. Fehliy, 21 Mo. App. 327; Hamilton v. Berry, 74 Mo. 176; Meyer v. McCabe, 73 Mo. 236; Remmler v. Schmidt, 15 Mo. App. 192; Grave v. City of Kansas, 75 Mo. 672. If there is substantial evidence to support the verdict, the weight of evidence is solely for the jury and trial court. Brown v. Railroad, 13 Mo. App. 463; Siem v. Meir, 11 Mo. App. 589.

THOMPSON, J., delivered the opinion of the court.

This action was brought before a justice of the peace, on a bill of items, the first consisting of one hundred and seventy dollars, alleged to be “due as per statement,” and the balance consisting of several subsequent items for work and labor done, and allowing a credit of thirty dollars, paid at various times. A jury trial in the circuit court resulted in a verdict and judgment for the plaintiff for the amount claimed. The subsequent defence was, that the work was not done for the defendant, but for Mrs. C. M. Fallon, who was the owner of the shop in which the work was done, for whom the defendant was merely acting as manager. The evidence showed that Mrs. Fallon owned the shop, having bought it at a sale by an administrator of the estate of her deceased husband, Wesley Fallon, of which it formed a part; that the defendant, John F. Fallon, carried on the business of carriage making in the shop as her manager; that the name of the defendant no where appeared about the premises, upon signs, advertisements, or letter-heads, as the owner of the business; that in all the writings which passed between the plaintiff and the defendant touching the business, the defendant either appeared merely as “manager,” or as “attorney” of Mrs. Fallon. Bank checks were drawn by the defendant in favor of the plaintiff, and collected by him, signed “C. M. Fallon, per John F. Fallon, Att'y,” and the plaintiff signed a receipt for thirty-five dollars, reading, “received of John F. Fallon, manager.” The plaintiff received from the defendant a book, in which his account was settled, exhibiting the same items as those in the account sued on. The caption of the account in this book was, “Henry Friesz in account with Wesley Fallon, John F. Fallon, manager.”

Wesley Fallon died in 1876, but the widow still used his name in carrying on the business. Down to the time when the defendant became the owner of the business, which was subsequent to the date when the plaintiff's account accrued, the name of Wesley Fallon continued on the sign over the door. A picture hung in the office during the whole period when the plaintiff worked there (nearly a year and a half) having on it the following words in print: “Fallon's Carriage Factory. Wesley Fallon, Carriage Builder, Established 1845. Wesley Fallon, Carriage Builder, 10th & St. Charles Sts. John F. Fallon, Manager, St. Louis.” Another advertising picture, that of “Rarus,” the celebrated racehorse, hung in the office, with the following words printed upon it: “Established in 1845. Wesley Fallon, Carriage Builder, 10th & St. Charles Sts., St. Louis, Mo., John F. Fallon, manager.” The bill-heads, letter-heads, and envelopes, used in the business, all exhibited the name of John F. Fallon as manager. They were scattered about the office where anybody could see them, and the evidence showed that the plaintiff was frequently in the office.

The plaintiff's oral testimony was to the effect that he was hired by the defendant; that he did not know that the defendant was not himself the owner of the business; that he could not read English and never read this book and the other papers, which carried on their face evidence that the defendant was carrying on the business merely as the agent of another. An account was put in evidence by the plaintiff, which the defendant had rendered against the estate of a deceased person for work, which had been done in the shop during the period when the plaintiff was employed there. This account ran in the name of “John F. Fallon, successor to Wesley Fallon.” The defendant thus proved up this claim in his own name, and, it seems, received the sum ...