Galamba v. Harrisonville Pump & Foundry Co.

• Citation: 191 S.W. 1084
• Decision Date: 29 January 1917
• Docket Number: No. 12238.,12238.
• Court: Court of Appeal of Missouri (US)
• Parties: GALAMBA v. HARRISONVILLE PUMP & FOUNDRY CO. et al.

191 S.W. 1084

GALAMBA v. HARRISONVILLE PUMP & FOUNDRY CO. et al.

No. 12238.

Kansas City Court of Appeals. Missouri.

January 29, 1917.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Suit by Adolph E. Galamba against the Harrisonville Pump & Foundry Company and others. Judgment for plaintiff, and defendant J. H. Gwathmey appeals. Reversed and remanded.

Omar E. Robinson, of Kansas City, Harry W. Curry, of Webb City, and Halbert H. McCluer, of Kansas City, for appellant. M. L. Friedman, I. J. Ringolsky, and Ringolsky & Friedman, all of Kansas City, for respondent.

TRIMBLE, J.

This is a suit upon a stated account for scrap iron alleged to have been sold to the defendants as joint purchasers. The iron was sold by the Galamba Iron & Metal Company, a corporation, and the petition alleges that an account was stated between said company and the defendants, and that on such stated account it was agreed that $790.60 was due from defendants to said company, and that the defendants agreed to pay said sum. Said account was afterwards assigned to the plaintiff, who brought this suit. The defendants filed separate answers. A verdict and judgment was had against both defendants, and the individual defendant has appealed.

There is no contest over the amount of the account, nor over the question whether it is an account stated or not, nor as to plaintiff's right to sue thereon. Appellant Gwathmey's main contention is that, as to him, the agreement or contract forming the ultimate foundation of the suit was within the statute of frauds.

It seems that the defendant Harrisonville Pump & Foundry Company was a corporation organized and located at Harrisonville for the manufacture of mining machinery, in which it used large quantities of scrap iron as raw material. Defendant Gwathmey had much to do with getting the company organized and started and was a large stockholder therein. He was also a creditor thereof, and, when it finally became involved financially and its assets sold, he became the purchaser. Gwathmey was an officer, stockholder, and in charge of the business of the Central Foundry Company at Webb City, at which place the Galamba Iron & Metal Company was also located and where the plaintiff then lived. The Galamba Iron & Metal Company was a dealer in scrap iron and junk at Webb City. After defendant Gwathmey had gotten the Harrisonville Pump & Foundry Company started in business, he went to the Galamba Iron & Metal Company and wanted it to sell scrap iron on account to the Harrisonville Company. The Galamba Company (of which plaintiff was then president) refused to extend credit to the Harrisonville Company, as it did not regard said company as being in good financial condition. The entire manufactured output of the Harrisonville Pump & Foundry Company was delivered to Gwathmey and the Central Foundry Company for sale and disposition on a commission basis. Upon the refusal of the Galamba Iron & Metal Company to extend credit to the Harrisonville Pump & Foundry Company, Gwathmey told Mr. Galamba, the president of the iron company, that the Central Foundry Company and the Harrisonville Pump & Foundry Company were practically the same and that the stockholders in each were the same. But Mr. Galamba still refused to extend credit to the Harrisonville Company, and thereupon the defendant Gwathmey, so plaintiff contends, proposed that the iron be sold to both of them, himself and the Harrisonville Pump & Foundry Company, and that it be charged to both of them on the Galamba Iron & Metal Company's books. Thereupon, according to plaintiff's version of the matter, the scrap iron, in the account that afterwards became a stated account between the seller and both defendants, was sold to both defendants and was charged to both of them.

It is appellant's contention that, at best, plaintiff's evidence shows nothing more than a sale to the Harrisonville Company and an agreement on Gwathmey's part to pay for the iron in case the Harrisonville Pump & Foundry Company did not pay. Of course, if that is the real nature of the agreement, then the alleged promise of Gwathmey is merely a promise to answer for the debt of another, and, being oral, no action against Gwathmey could be maintained upon it or upon the stated account growing solely out of the sale. Section 2783, R. S. Mo. 1909. On the other hand, if the sale was made to both defendants—that is, if the two were joint purchasers—then Gwathmey's agreement was a direct undertaking to be responsible for the whole account, and, in that event, it was not within the statute of frauds.

The evidence offered upon the plaintiff's side clearly tends to show that the Galamba Iron & Metal Company refused to sell to the Harrisonville Pump & Foundry Company and agreed only to make the sales to both it and Gwathmey. Plaintiff testified that:

"The conversation, when it came up to me, he (Gwathmey) asked about selling merchandise to the Harrisonville Pump & Foundry Company, and I told him I had no faith in the Harrisonville Pump & Foundry Company. `Well,' he says, `you sell the goods to me and the Harrisonville Foundry, that I may go in myself.' And I says, `Yes, you can have all the credit you want.'"

He further testified that, after the goods were sold to Mr. Gwathmey at Webb City, he took the goods and they were shipped. He further testified that the goods were to be charged to Gwathmey and to the Harrisonville Pump & Foundry Company, and that they were so charged. The bookkeeper for the Galamba Iron & Metal Company corroborated plaintiff as to the agreement, and testified that the president refused to sell to the Harrisonville Pump & Foundry Company, but said he would sell to Gwathmey, and that then it was agreed that the sale should be to both, and Gwathmey said to charge the account to him and the pump company.

In charging the account on the books, the bookkeeper did not charge it in one account to Gwathmey and the Harrisonville Pump & Foundry Company, but charged the account in duplicate on two different and separate pages of the ledger thus: On one the heading was, "Joe Gwathmey (see Harrisonville Pump & Fdry. Co.)." And on the other was "Harrisonville Pump & Fdry. Co. (see Joe Gwathmey)." The accounts under each heading were identical. But, although the account, thus charged, was not entered upon the books in the form of a joint account, yet the entries...