Greenbrier Distillery Co. v. Van Frank

• Decision Date: 21 February 1910
• Citation: 147 Mo. App. 204,126 S.W. 222
• Parties: GREENBRIER DISTILLERY CO. v. VAN FRANK.
• Court: Missouri Court of Appeals

126 S.W. 222

147 Mo. App. 204

GREENBRIER DISTILLERY CO. v. VAN FRANK.

St. Louis Court of Appeals. Missouri.

February 21, 1910.

1. NEW TRIAL (§ 41)—HARMLESS ERROR.

In an action for liquor sold and delivered, it was not error warranting a new trial to exclude testimony that defendant's agent and manager of his hotel had all letters brought to him, that he withheld those he did not wish defendant to see, putting them in his pocket, as tending to rebut the presumption that letters mailed, properly addressed to defendant, had not been delivered, since it did not show what letters were withheld, or to what matters those withheld

related, and the evidence was incompetent as too general and indefinite.

2. NEW TRIAL (§ 41)—HARMLESS ERROR.

In an action for liquor sold and delivered, excluding testimony that defendant's agent and manager of his hotel directed that all telegrams going into the hotel be brought to him, as bearing on the issue that he suppressed plaintiff's telegram to defendant, held insufficient to warrant a new trial.

3. CORPORATIONS (§ 642)—FOREIGN CORPORATIONS—RIGHT TO DO BUSINESS IN THE STATE —LICENSES.

A foreign corporation, selling to a customer in the state through a traveling agent, need not take out a license to do business in the state.

4. TRIAL (§ 244) — INSTRUCTIONS — SINGLING OUT EVIDENCE.

An instruction, which singled out particular evidence and commented on that alone to the exclusion of the other evidence in the case, was erroneous.

5. PRINCIPAL AND AGENT (§ 194)—INSTRUCTIONS.

In an action for liquor claimed to have been purchased by defendant's agent for defendant, an instruction tending to confuse the jury, and direct their attention to the fact that direct evidence should have been given of authority to constitute agency, which was not the law, was erroneous.

6. PRINCIPAL AND AGENT (§ 96)—AUTHORITY —SALES.

If D. was the agent of defendant, and had authority as such to purchase from plaintiff liquor in the name and on the credit of the defendant, plaintiff may recover from defendant for liquor so purchased.

7. TRIAL (§ 260)—INSTRUCTIONS.

In an action for liquor claimed to have been purchased by defendant's agent for defendant, where the court charged that agency need not be shown by direct and positive proof, but may be established by circumstantial evidence, and if defendant's agent had authority as such to purchase from plaintiff the liquor in the name and on the credit of defendant, plaintiff may recover therefor from defendant, it was not error to refuse to charge that there was no evidence in the case that defendant gave authority to his agent to buy the liquor, and that, if the agent, by false and fraudulent representations to the plaintiff, made with the intention to buy the goods sued for, converted the goods to his own use, and that the sale was made by plaintiff by reason of the full reliance on the statement of defendant's agent that he was defendant's agent, and that such statement was false, plaintiff should recover, since the charge given fully and correctly covered the doctrine of proof of agency as applicable to the case.

8. PRINCIPAL AND AGENT (§ 20)—EVIDENCE OF AGENCY.

In an action for liquor claimed to have been purchased by defendant's agent for defendant, the fact that city and federal licenses were standing in defendant's name was a circumstance proper for consideration in connection with the other evidence on the issue of agency.

9. APPEAL AND ERROR (§ 1215)—PROCEEDINGS AFTER REMAND—TRIAL—INSTRUCTIONS.

In an action for liquor claimed to have been purchased by defendant's agent for defendant, where plaintiff abandoned the theories, urged at a former trial, that the defendant had ratified the sale and was estopped to deny the agent's authority, and elected to rely on the theory that the agent had the right to make the purchase in defendant's name, it was proper to refuse a charge on the issues of ratification and estoppel, although the court, on appeal from the judgment in the former trial, directed that all these issues be submitted to the jury.

Appeal from Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Action by Greenbrier Distillery Company against Philip R. Van Frank. From an order sustaining defendant's motion for a new trial, plaintiff appeals. Reversed and remanded.

R. H. Whitelaw and Wilson Cramer, for appellant. Robt. L. Wilson and Byrns & Bean, for respondent.

REYNOLDS, P. J.

Under the title of Hackett et al. v. Van Frank this case has been before this court on two previous appeals, the first time on the appeal of defendants, reported 105 Mo. App. 384, loc. cit. 400, 79 S. W. 1013, 1017. In the opinion in that case, which was rendered by Judge Goode, it was said: "The case should be submitted to the jury to decide these issues: First. Whether Dunlop had authority to make the purchases in Van Frank's name. If he had actual authority, the liability of the defendant follows without reference to any other issue. Second. Whether, if he did not have authority at the time they were made, the defendant afterwards learned they had been made in his name, and acquiesced in Dunlop's action, thereby ratifying it. In either of those two contingencies the jury are not concerned with the question of estoppel. Third. If Dunlop's acts are found to have been neither authorized nor ratified by the defendant, whether the latter's behavior when he got the telegram induced Sugg to believe Dunlop had acted with authority, and, so believing, to make the sale on December 6th. We are thus explicit because this is a case in which there is much danger of an unjust result, unless it is tried cautiously, and the jury's attention drawn directly to the facts by close instructions. Abstract announcements of legal principles should be avoided."

On the second appeal, which was by the plaintiffs, the court had refused to allow the amendment of the names of the parties plaintiff from the name of the partners to that of the corporation, under which it appears they were doing business at the time the sale is alleged to have been made to the defendant. That case is reported 119 Mo. App. 648, 96 S. W. 247, when this court held that the amendment should have been allowed. The venue of the case was again changed, and it was finally tried in Jefferson county, and resulted in a verdict in favor of the plaintiff for the full amount claimed as the value of certain barrels of whisky alleged to have been sold by plaintiff to the defendant. On a motion for a new trial, which the defendant filed, the trial court sustained the motion, and granted a new trial for the reason assigned "that the court excluded and refused to permit the defendant to read in evidence to the jury on the trial of the cause the following portion of the deposition of Joe C. Lind, namely: `I will ask you if you know anything of Frank Dunlop withholding from Col. Van Frank letters or other mail matter, that would come through the post office addressed to Col. Van Frank? A. Yes, sir. Q. How often would that occur? A. As often as he would see a letter that he would think he didn't want the Colonel to see. Q. Do you know what Dunlop would do with these letters? A. No, sir; he would put them in his coat pocket when I would hand them to him. I had instructions from Dunlop to bring mail for everybody at the hotel; to bring mail to him first, positively.' And because the court further erred on the trial of the cause in refusing to permit the defendant to ask of the witness Cochran the following question, namely: `Did you ever have any arrangements with Mr. Dunlop by which messages that go into the hotel were to be delivered to him?'" Whereupon plaintiff appealed; the error assigned being that the circuit court erred in sustaining the defendant's motion for a new trial and in granting him a new trial. The defendant, resisting the appeal, contends that there not only was no error in granting the new trial for the reasons stated by the trial court, but that, outside of the reasons assigned by the trial court, a new trial should have been awarded for error of the court in refusing intructions he asked, numbered 5, 6, 7, 8, 9, 10, and an instruction not numbered, but which we number 11.

The facts in the case so far as necessary to an understanding of it are set out in the report of the case in 105 Mo. App. and 79 S. W., before referred to. Beyond that we only consider it necessary to a full understanding of the case as now before us to set out the instructions which were given and refused.

At the instance of the plaintiff the court gave three instructions as follows: "(1) The court instructs the jury that it is admitted in the pleadings that the Greenbrier Distillery Company, the plaintiff in this cause, is a corporation organized and existing under the laws of the state of Kentucky; and you are further instructed that, as such foreign corporation, it has the right under the laws of the state of Missouri to sell goods in Missouri through its traveling salesmen or drummers, even though it has not filed with the Secretary of State of the state of Missouri a copy of its charter or articles of association. And you are further instructed that, if you shall find from the evidence in this cause that plaintiff was not carrying on its business in the state of Missouri otherwise than by soliciting trade...