Hancock v. Crouch
| Citation | 267 S.W.2d 36 |
| Decision Date | 09 April 1954 |
| Docket Number | No. 7222,7222 |
| Parties | HANCOCK v. CROUCH et al. |
| Court | Court of Appeal of Missouri (US) |
Wayne W. Waldo, Waynesville, Earl E. Roberts, Steelville, Roy V. Selleck, Rolla, for defendants-appellants.
Tom A. Shockley, Waynesville, for plaintiff-respondent.
In this action, plaintiff sought to recover $568.46 as the net balance alleged to have been due him under an oral agreement with defendants, the owners of a country grocery store at Swedeborg, Missouri, where plaintiff was employed from August 25, 1950, to February 28, 1951. Defendants owned and personally conducted another store; and, plaintiff was the sole employee in, and was in complete charge of, the Swedeborg store except on Sundays when plaintiff, an Assembly of God minister, was off duty at the store and it was operated by defendants. As stated in plaintiff's petition, his oral agreement with defendants was 'that when it was necessary to buy merchandise for said store, that the plaintiff would advance the necessary amount of money to buy merchandise and that the defendants would reimburse him for money so advanced'. Defendants denied the alleged agreement in their answer and filed a counterclaim in which they charged that 'plaintiff has failed and refused to account to defendants for the profit of $919.60' alleged to have accrued during the period of plaintiff's employment, and that defendants also had 'extended credit in money and merchandise to plaintiff' in the aggregate amount of $137.86 which plaintiff had failed and refused to pay. Defendants appeal from the judgment entered upon the jury verdict awarding $568.46 to plaintiff upon his petition and denying recovery upon defendants' counterclaim. Plaintiff-respondent has filed no brief in this court.
Plaintiff was employed at a daily wage of $3, which admittedly was paid for the entire period. Plaintiff testified that, when he started to work for defendants, he talked with them 'about the condition of the store'; that 'there was supplies needed'; and, that 'the first day, as soon as I went to work, * * * I went * * * to get supplies that was needed'. 'Then is when the agreement was made, when I went over * * * to get the supplies.
I told them 'I would help them out in that way until they could get along themselves', and it was agreed upon * * *'.
Although defendants had denied in their answer that there was any such oral agreement with plaintiff, their testimony upon trial indicated that there might have been some such arrangement. Defendant, A. J. Crouch, said that he had the following conversation with plaintiff at the time of his employment: When asked whether she knew 'anything about the agreement for Mr. Hancock putting stock into the store', defendant, Mrs. Clara Crouch, replied 'only if we was short, he would put in a few dollars along to help out'.
Plaintiff's testimony was that, after entering the Swedeborg store under this arrangement, he had advanced personal funds, from time to time, to pay for merchandise and supplies for the store; that, by December 26, 1950, his net advances had aggregated $706.32; but, that payments by defendants in the aggregate amount of $137.86 during the period from March 23 to July 8, 1951 (and after termination of plaintiff's employment), had reduced the alleged indebtedness to $568.46.
Defendants admittedly knew, while plaintiff was working in their Swedeborg store, that he was claiming that he was advancing funds for them. Defendant, A. J. Crouch, recalled the following conversation with plaintiff 'about three weeks' after plaintiff's employment on August 25, 1950: 'I asked him 'if he spent anything' and he said 'I spent about $150.00'. Of course I was half-way blowed up because I didn't expect that. And I told him 'to quit that spending right now and don't put another dime in it'. I said, 'You get your money out of this as fast as you can; if the store can't pay for itself, we will close it up'.' Nevertheless, Crouch said that thereafter 'I never paid any more attention--I never asked him (plaintiff) any more', although 'he would tell the wife every once in awhile how much he spent'. Defendant, Mrs. Clara Crouch, likewise testified that 'every once in awhile' plaintiff had told her about his claimed advances.
During the period of his employment in defendants' store, plaintiff kept two books or records. One of these was a bound journal (to which we hereinafter refer as 'the bound journal'), in which was entered each day (except on Sundays) the cash receipts, 'paid-outs' and 'no tax items' at the Swedeborg store. The receipts for each Sunday were left in the cash register and were entered in the bound journal with the receipts for the following Monday. Plaintiff said that entries in the column headed 'pd. out' showed 'what was paid out for groceries' while entries in the column headed 'no tax items' showed 'what was paid out for eggs', and that both of those columns reflected payments made in connection with operation of the store. Some of the eggs were purchased by checks drawn on Crouch's bank account; but, as defendant Crouch testified, 'still there was a lot of eggs that come through the store that was paid cash for'.
Plaintiff's theory upon trial was that the need for the additional cash claimed to have been advanced by him from time to time arose, at least in part, by reason of the fact that eggs were purchased with cash from the register, which thus was withdrawn from the business, but that proceeds derived from sale of such eggs (presumably to dealers or processors) were received and retained by defendants and were not returned to the business. Defendant, A. J. Crouch, admitted that 'for the first four or five weeks' he got the proceeds derived from sale of eggs and 'used it for other purposes', but said that thereafter 'I began to give him (plaintiff) the money'.
During the period of plaintiff's employment from August 25, 1950, to February 28, 1951, the sum total of cash receipts at the Swedeborg store, as reflected by entries in the 'cash' column in the bound journal, appears to have been $8,215.85, while the sum total of the entries in the column headed 'pd. out' (reflecting, as plaintiff said, 'what was paid out for groceries') appears to have been $7,894.96. But, upon the record before us, this cannot be said to establish an excess of cash receipts over disbursements for the reason that, as we have noted, plaintiff insisted that 'what was paid out for eggs' was entered in the column headed 'no tax items', where entries aggregating $2,577.27 appear during the same period. However, the record does not show how much cash was taken from the register in the Swedeborg store to purchase eggs, what procedure was followed with respect to resale of such eggs, the identity of the purchaser or purchasers of those eggs, what net proceeds were derived from sale thereof, what portion of the net proceeds was received and retained by defendants, what portion thereof was returned to the business, or what portion (if any) of such net proceeds derived from sale of eggs is reflected by the entries in the bound journal.
Although defendant, A. J. Crouch, said that he 'didn't fool with the money at all', he also stated that 'I took one check of $33.00 to pay my taxes with * * * and I hid it in a match box--he (plaintiff) found it and said something to my wife'. The record is silent as to whether that withdrawal is reflected in the bound journal. Furthermore, there was no showing as to whether plaintiff's daily wage of $3.00 was paid by his withdrawal of cash from the register or by checks issued to him by defendants, or as to whether wages paid to plaintiff were reflected in the bound journal.
The foregoing will serve to demonstrate that it would be utterly impossible, from the bound journal offered in evidence by defendants, to determine whether any advances for supplies were made by plaintiff or, if so, the dates and amounts of such advances. However, plaintiff testified that, during the entire period of his employment in defendants' store, he had kept a separate account book (to which we hereinafter refer as the 'account book'), four pages of which (identified as plaintiff's Exhibits 1A, 1B, 1C and 1D and received in evidence over vigorous objections by defendants' counsel) reflected accurately the dates on which, the purposes for which, and the amounts in which, advances were made by plaintiff under the alleged oral agreement, and likewise the credits to that account which, as plaintiff explained, were by withdrawals of money from the cash register.
Defendants assign error in the admission of plaintiff's Exhibits 1A, 1B, 1C and 1D 'for the reason that said exhibits were merely written memoranda made by plaintiff without the knowledge of defendants, they were self-serving declarations, they were not books of account, and they were not properly identified'. However, plaintiff testified that 'I made that record (the account book) because they (defendants) asked me to keep a record of what I paid out'; that 'I started making the record from the first day I was in there, which they asked me to do, and it laid by the cash register at times for their inspection, which they did look at it for their own benefit'; and that the record was made 'from each day to day'--'when I was out money, why, I had to enter that in the book'. Although they denied having 'fooled with' or looked at the account book, defendants' testimony showed that they had actual knowledge of the existence and location of the account book, and that, irrespective of whether they, in fact, examined it from time to time as plaintiff said they did, defe...
To continue reading
Request your trial
-
Hildreth v. Key
...court is inclined to defer to his opinion. Davis v. Terminal Railroad Ass'n of St. Louis, Mo., 299 S.W.2d 460, 465(9); Hancock v. Crouch, Mo.App., 267 S.W.2d 36, 46(18). However, the argument under review was not retaliatory in nature [contrast Nelson v. O'Leary, Mo., 291 S.W.2d 142, 150(18......
-
Faught v. Washam
...the court's comment that 'the jury will regard these arguments purely as arguments, and not as evidence in this case' [Hancock v. Crouch, Mo.App., 267 S.W.2d 36, 44(12)]; and, with this argument thus approved, plaintiff's counsel in substance repeated it. The quoted 'job offer' was a tandem......
-
Allen v. St. Louis Public Service Co.
...864, 254 S.W.2d 577. And it has been said that the Act does not make relevant that which would not otherwise be relevant. Hancock v. Crouch, Mo.App., 267 S.W.2d 36; and see Long v. United States, 4 Cir., 59 F.2d 602; Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692 (by an......
-
Davis v. Terminal R. Ass'n of St. Louis
...Louis, Mo., 251 S.W.2d 622, 625-626; Crews v. Kansas City Public Service Co., 341 Mo. 1090, 1105, 111 S.W.2d 54, 62; Hancock v. Crouch, Mo.App., 267 S.W.2d 36, 46(18). After careful consideration of the quoted statements of plaintiff's counsel in context, in relation to the vigorous and wid......