General Electric Co. v. Commercial Electrical Supply Co.

• Decision Date: 06 February 1917
• Docket Number: No. 14561.,14561.
• Citation: 191 S.W. 1106
• Parties: GENERAL ELECTRIC CO. v. COMMERCIAL ELECTRICAL SUPPLY CO.
• Court: Missouri Court of Appeals

191 S.W. 1106

GENERAL ELECTRIC CO. v. COMMERCIAL ELECTRICAL SUPPLY CO.

No. 14561.

St. Louis Court of Appeals. Missouri.

February 6, 1917.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

"Not to be officially published."

Trover by the General Electric Company against the Commercial Electrical Supply Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action in trover or conversion in which the plaintiff (respondent here) seeks to recover from defendant (appellant here) the value of certain electric lamps, alleged to be its property, which the defendant had received from plaintiff's agent, and for which it is alleged the defendant had given no present consideration, but for which it had given the agent credit on a then existing indebtedness of the agent to the defendant. The petition is in two counts. The defendant's answer is a general denial. The case was tried before a jury. At the close of the plaintiff's case the plaintiff elected to proceed on its first count. The jury returned a verdict for $542.68 in favor of plaintiff and against the defendant, from which judgment defendant appeals.

There was evidence tending to prove that the plaintiff, a New York corporation, and a general manufacturer of electric and gas fixtures, appointed, by a written contract, the Standard Electric Company, a corporation of Oklahoma City, Okl., its agent to sell certain electric lamps. By the written contract, introduced in evidence, it is shown that the lamps delivered to the said agent, the Standard Company, should be and remain the property of the plaintiff until sold in the ordinary course of trade; that the contract for the agency had been made in the latter part of March, 1912; that in the month of April of that year the Standard Company, being then insolvent, began to sell the defendant certain quantities of the various kinds of electric lamps which it had on consignment from the plaintiff company; that at the time the defendant began buying electric lamps from the Standard Company (agent of plaintiff), the Standard Company was indebted to the defendant in a large sum, the greater part of which was past due, and for which the defendant company had not been able to obtain payment, though it, at various times, had endeavored so to do. While the petition alleges the transactions as occurring on or about July 1, 1912, the testimony showed the transactions as having taken place in April and May, 1912. The evidence tended to show that the various lots of lamps which were received by the defendant from the Standard Company were not sold in the usual and ordinary course of trade, in that the defendant did not pay for them in cash, but that the defendant gave credit therefor on an account then owing to it by the Standard Company. That the first two shipments of lamps had been made to the St. Louis Transfer Company instead of direct to the defendant, and there was evidence to the effect that an officer of the defendant company knew of the transactions and wished to have the same kept confidential. The evidence showed that the package numbers and all manner of identification were removed from the lamps, on all the orders that were shipped to the defendant company. That upon plaintiff learning of the shipments having been made in this manner to the defendant, the plaintiff canceled the agent's contract and demanded of the defendant the return of the lamps so shipped, or the payment to it of the value of the same, and that defendant refused to return the property or pay for it.

Fagin & Kane, of St. Louis, for appellant. Perry Post Taylor, Emil Mayer, and Ben L. Shifrin, all of St. Louis, for respondent.

BECKER, J. (after stating the facts as above).

It is well to note at the outset that the Standard Electric Company was clearly shown, by the uncontradicted testimony, to have been the selling agency for certain kinds of patented incandescent lamps manufactured by the plaintiff, the General Electric Company, and that this contract stipulated that all lamps were to be delivered to the said Standard Electric Company solely on consignment, to be and remain the property of the General Electric Company until sold by the latter in the ordinary course of trade, and that such lamps as were disposed of in that manner, by the Standard Company, should be paid for by it on the 10th day of the month next succeeding the month in which such lamps had been sold, less a commission of 29 per cent. from the list price to be established from time to time by the said General Electric Company.

The Standard Electric Company was thus the plaintiff's factor, and as such it could not pledge or transfer plaintiff's lamps in payment of its own debt. This is held to be the...