Isreal v. Fanchon & Marco, 17690.

• Decision Date: 06 March 1933
• Docket Number: No. 17690.,17690.
• Citation: Isreal v. Fanchon & Marco, 58 S.W.2d 774 (Mo. App. 1933)
• Parties: ISREAL v. FANCHON & MARCO.
• Court: Missouri Court of Appeals

58 S.W.2d 774

ISREAL v. FANCHON & MARCO.

No. 17690.

Kansas City Court of Appeals. Missouri.

March 6, 1933.

Rehearing Denied April 3, 1933.

Appeal from Circuit Court, Jackson County; Edward E. Naber, Special Judge.

"Not to be published in State Reports."

Action by Charles Isreal against Fanchon & Marco, a corporation. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Arthur Miller, David L. Sheffrey, and Roscoe C. Van Valkenburgh, all of Kansas City, for appellant.

Jas. T. Sadler and Chas. N. Sadler, both of Kansas City, for respondent.

BOYER, Commissioner.

This action was instituted to recover the sum of $758, alleged to be the reasonable value of work and labor performed by plaintiff at the special instance and request of defendant from August 6 to October 17, 1930. The sufficiency of the petition is not questioned. The answer was a general denial. The case was submitted to a jury upon instructions. Plaintiff had a verdict and judgment for the amount claimed, and defendant duly appealed.

Defendant was a foreign corporation engaged in the business of producing stage entertainment or shows to be exhibited in theaters owned or operated by others. There was a theater in Kansas City known as the Pantages, which was being operated by the Charno Amusement Company, a Missouri corporation. The two corporations entered into a written contract by the terms of which they agreed that Fanchon & Marco would furnish shows for exhibition, including talent, costumes, scenery, etc., for a stated period and price. One provision of the contract was that the Charno Amusement Company agreed to pay for all charges in connection with the transferring of scenery, costumes, and baggage from the railway station to the theater, and return. The plan was to present a new show each week, and each separate unit or show furnished by Fanchon & Marco had its own manager who was called the roadman or carpenter, and who had full charge, control, and authority over all business connected with the exhibition. The first show arrived by train in Kansas City about the 6th day of August, 1930, and was in charge of John Henry Tull, an employee and representative of defendant. This show, as well as others, carried a large amount of scenery and baggage.

Plaintiff had been accustomed to do practically all hauling and transfer business for the theaters in Kansas City, and it had been the custom theretofore for all shows to pay their own transfer bills. Plaintiff at the time had no knowledge of the agreement between defendant and Charno Amusement Company, that the latter would pay the transfer bills of defendant.

Plaintiff's managing agent testified that when the first show arrived in Kansas City a call came to the office, and in answer to it he went to the hotel where the representative of defendant was staying, took him to the office of plaintiff, and thence to the railroad car where the scenery, baggage, and equipment were loaded into trucks furnished by plaintiff and transported to the theater; all at the request and under the immediate direction of defendant's representative. When the show had concluded its engagement the property was again transported to the railroad, and by that time another show was in and received similar attention under the direction of the roadman or carpenter in charge of it. This process of handling, hauling, and transporting defendant's property from the railroad cars to the theater and back again was continued at weekly periods from August 6 to and including October 17, 1930. The testimony in behalf of plaintiff tends to show that this service was rendered solely at the instance and request and under the direction of the agents of the defendant, and that plaintiff received no request or direction from the Charno Amusement Company at any time to transfer any of the property. Plaintiff's agent in charge of the business testified: "I had no instructions or directions from them or no business with the Charno Amusement Company of any kind." He would furnish memoranda of the amount of equipment used and time of hauling to plaintiff's bookkeeper, who made out invoices of the bills and kept the books of account. Approximately at the end of each week a statement of account or an invoice was prepared showing the date, the number of loads and pieces transported, and the charge therefor against defendant, and mailed to "Fanchon & Marco, c/o Pantages Theater." The total amount of these bills is the amount sued for in this case. None of the bills were paid, and on the day that the last show was exhibiting in Kansas City, plaintiff filed this suit and attached the property then in Kansas City. Said attachment was released upon entry of appearance by defendant.

The evidence on behalf of defendant was furnished by John Henry Tull and the depositions of two other witnesses. Mr. Tull testified that he was the roadman and employee of defendant, and in charge of the first show that arrived in Kansas City for the Pantages Theater; that his duties were to take charge of the scenery and equipment, collect from the theater, pay the actors, and transmit the balance of the money to defendant; that he had no authority to incur any other obligations; that he did not request plaintiff to haul the equipment and scenery from the station to the theater and return; that he did not incur any transfer charges of any kind or character, and did not agree to pay said charges to the plaintiff; that he arrived in Kansas City after midnight August 6; that the next morning he met a man from the transfer company; that he did not call any one to come to see him and did not know of the Isreal Transfer Company; that the man who called on him did not tell him why he happened to call, but that he went with him to the transfer company's office, which was that of plaintiff; that the transfer agent called for him and took him down to the transfer company.

"Q. Did you tell them how many pieces of scenery you had, or give them any instructions there at the office? A. They might have asked me; I don't know whether I did or not. I know I told them fully how many loads I had."

Witness testified that he went from the Isreal Transfer Company to the baggage company at the Union Station where the property was loaded and then transported to the theater, but that he had no conversation with any one relative to the payment of the moving charges. He further testified that at the end of the week a bill for such charges was presented to him by the plaintiff.

"Q. I wish you would tell the court and jury the circumstances connected with that presentation. A. Well, some representative of the transfer company came and handed me a bill, and I said, `What is this?' `Well' he said, `it is a bill for the moving.' I said, `Bill for the moving?' And he said, `Yes.' I said, `Why, we don't pay this; Fanchon & Marco don't pay this; the house or theater pays it. You had better take this to the manager of the theater.' So I handed him the bill back and he went away and returned about ten minutes afterwards and said, `It is all right'; he said `you are right.' And we finished loading and took the stuff to the car.

"Q. In your conversation did you have any occasion to tell him of any arrangement that you had with the Pantages Theater for the payment of those charges? A. Well, I told him it was a contract between Fanchon & Marco and Pantages Theater, whereby the theater paid the transfer charge."

Louis Charninsky testified by deposition that he was manager of the Pantages Theater for the Charno Amusement Company; that he was secretary for said company and manager, and that he booked shows; that the Charno Amusement Company had a contract with Fanchon & Marco to supply presentations. He was asked who gave Isreal instructions to get the scenery and baggage for the first Fanchon & Marco show and said: "Isreal does all the hauling for all of the shows in Kansas City." He testified that bills for hauling were sent to the Pantages Theater and were put in a basket with other bills and were not given to the representatives of Fanchon & Marco; that the bills were never paid; that plaintiff never came around for the bills and did not inquire about his pay; that the theater stopped running the shows about the middle of October for lack of funds; that he informed the plaintiff on the last day of the show, when the sheriff came to attach the property, that "we are supposed to pay that baggage hauling."

M. D. Howe testified by deposition that he was the general booking manager for Fanchon & Marco, Inc.; that the company had an agreement for the presentation of shows in Kansas City with the Charno Amusement Company. He identified a contract which was exhibited to him, and testified that shows were furnished under it for approximately eleven weeks, and that he negotiated the contract with the Charno Amusement Company. He also testified that the theater operator made the arrangements for transfer companies to meet the incoming shows, and in event no transfer company was there that the man in charge would call the theater operator; that to his knowledge there had never been any attempt by plaintiff to collect transfer charges prior to the closing of the show in Kansas City, and that no bill had been presented therefor; that he first learned of plaintiff's attempt to collect from defendant when he appeared with the sheriff, and that defendant never at any time assumed any responsibility for the transfer charges. The contract between defendant and the Charno Amusement Company was annexed to the deposition of Mr. Howe.

The defendant offered the contract referred to in evidence. There was an objection on the ground that the contract between defendant and the Charno Amusement Company was not binding upon plaintiff; that he was not a party to it, and had no knowledge of its existence. The record shows a discussion between the court and counsel on both sides in reference to the matter.

The...