Hayes v. Wells Fargo & Co. Express

• Decision Date: 06 November 1918
• Docket Number: No. 14977.,14977.
• Citation: 206 S.W. 229
• Court: Missouri Court of Appeals
• Parties: HAYES v. WELLS FARGO & CO. EXPRESS.

206 S.W. 229

HAYES v. WELLS FARGO & CO. EXPRESS.

No. 14977.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs October 7, 1918.

Opinion Filed November 6, 1918.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by Jos. M. Hayes, doing business as the Joseph M. Hayes Woolen Company, against the Wells Fargo & Company Express, before a justice of the peace. `From a judgment for defendant, plaintiff appeals. Affirmed.

Oliver A. Fabick, of St. Louis, for appellant. Fordyce, Holliday & White, of St. Louis, for respondent.

Statement.

REYNOLDS, P. J.

In May and June, 1911, two brothers-in-law, named, respectively, A. Granas and A. Diamond, were engaged in the tailoring business in Los Angeles, Cal. A. Granas did business under the name of "American Tailors" there, at 280 South Main street, that being on the corner of Third and Main streets. A. Diamond did business under the name of "Diamond & Co." there, at 504 South Broadway.

For some time prior to May and June, 1911, one Robert A. Winkleman had represented the Joseph M. Hayes Woolen Company as salesman, his territory including Los Angeles. He knew both Granas and Diamond and had done business with Diamond for some time.

In May, 1911, Winkleman entered Diamond's store and told him he was over at the Alexandria Hotel with his samples and wanted to get an order. Later in the day Diamond and his manager, Wallace, went over to the Alexandria Hotel to look at Winkleman's samples, and Diamond gave him an order, as shown by Winkleman's order book, which, so far as here material, reads as follows:

                  "Order No. ______, Date ______
                   M__, A. Diamond,__504 Bdy
                   Ship to (A. Granas)
                   At ______ Wells F
                   How ship: ______ When ________
                   Terms: ________ 7/15-7/60."
                

Then follows itemized description of goods. This order was checked with the itemized statement of goods shipped and corresponded to it.

There is evidence that Winkleman thereupon called on Granas and told him that he had an order from Diamond, and asked Granas whether he would guarantee it in consideration of ten per cent. of the purchase price. Granas said he would. Diamond testified that this was without his knowledge, but in this he is contradicted by Granas, who testified that Mr. Diamond himself told him that he (Granas) was to O. K. this order.

Mr. Hayes testified that he could not now locate the order sent in by Winkleman and could not state from his recollection whether or not that order showed that the goods were really ordered by Diamond but were to be shipped to Granas. He testified, however, that Winkleman, prior to this time, had suggested to him that he could obtain orders from Diamond with Granas' guarantee, provided he (Hayes) would allow a ten per cent. discount to Granas for such guarantee. Ho testified that he declined to entertain this proposition.

As shown by the stipulation filed, on June 3d the plaintiff delivered two bales of the value of $878, containing the goods specified in the order, to the defendant at St. Louis, consigned to A. Granas, Los Angeles, Cal. The goods arrived at Los Angeles, apparently, on the 7th of June, 1911, and were turned over by defendant to its driver, one McIntyre. McIntyre testified that he took the goods to the office of the American Tailors, that being Granas' shop, at Third and Main streets, and was told to take them around to the rear, which he did, and unloaded the goods in the back hall. Mr. Granas being sent for, told McIntyre to take the goods over to Diamond's store, 504 South Broadway. McIntyre thereupon called up the office of defendant and asked for instructions, and was told to follow Granas' instructions. Accordingly McIntyre loaded the bales on a truck and wheeled them over to Diamond's store, where he delivered them and received Diamond's check in payment of the express charges as also a receipt for the goods, which was signed by Diamond's bookkeeper, one Malinow. Thereafter, under date of July 3d, Malinow, in the name of Diamond & Co., remitted $350 on account of the purchase price of this shipment to plaintiff, the Joseph M. Hayes Woolen Company. According to the testimony of Malinow, another small payment was made by him to plaintiff for Diamond & Co. This reduced the claim of plaintiff from $878, the price of the goods, to $494.24. After these payments had been made, Granas called on Diamond and asked him whether he still owed any money to Hayes on account of this shipment, and upon Diamond's saying that he did, Granas insisted that he should be credited on 10 per cent. of the amount of the purchase price because of his arrangement with Winkleman. Diamond thereupon, in remitting to plaintiff a check for the balance, took credit on account of Granas for this 10 per cent. Plaintiff refused to receive this cheek and returned it to Diamond. Thereupon a controversey started between Hayes, Granas and Diamond and finally resulted La this action against defendant, the Wells Fargo & Company Express, the action begun before a, justice of the peace, for $494.24 plaintiff charging defendant with conversion of the...