Johannes v. Union Fuel Co.

• Decision Date: 08 January 1918
• Docket Number: No. 14904.,14904.
• Citation: 199 S.W. 1032
• Parties: JOHANNES v. UNION FUEL CO.
• Court: Missouri Court of Appeals

199 S.W. 1032

JOHANNES v. UNION FUEL CO.

No. 14904.

St. Louis Court of Appeals. Missouri.

January 8, 1918.

Rehearing Denied January 23, 1918.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by George P. Johannes against the Union Fuel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. F. Green and H. H. Larimore, both of St. Louis, for appellant. Taylor R. Young, of St. Louis, for respondent.

BECKER, J.

This suit originated before a justice of the peace by plaintiff filing a complaint against the defendant company upon an alleged contract for the use of plaintiff's teams and drivers, claiming a balance due of $32.01. The justice entered a judgment for the defendant. Thereupon plaintiff appealed to the circuit court, where the case was tried before the judge and a jury, and a judgment was returned in favor of the plaintiff for $32.01. Defendant appeals.

Plaintiff below, respondent here, is a teamster residing in the city of St. Louis, and the defendant, Union Fuel Company, is a corporation engaged in the selling of coal at retail in the same city. It appears that the defendant, at certain seasons of the year, employed teams, in addition to its own, to make deliveries of coal to its customers. Plaintiff's teams were managed by his wife, who acted as his agent and business manager. It appears that on several occasions, in the year or two prior to the time of the hauling which has given rise to the controversy in this suit, the defendant had used some of plaintiff's teams for hauling coal, and that on such prior occasions the hauling had been done upon a tonnage basis, namely, at so much per ton. In the instant case plaintiff's suit is for hauling done by teams of plaintiff between January 7 and February 4, 1913. The defendant paid the plaintiff for this hauling on a tonnage basis, whereas plaintiff claims the teams were hired upon the basis of $5 per day as the minimum sum to be paid for each team used; the $32.01 being the difference between the rate at a tonnage basis and that of the rate at $5 per day per team.

The facts show that on February 19, 1913, Mrs. Johannes, wife of the plaintiff, appeared in the general offices of the defendant company and was offered a voucher for the hauling done from January 7 to February 4, 1913, figured on a tonnage basis; that she disputed the correctness of the amount, but accepted the voucher, "with the understanding that, if it was not correct, it would be rectified." It is admitted that the full amount was tendered by defendant to the plaintiff, if said hauling was done on a tonnage basis; also that, if the hauling was done under the contract of $5 per day per team, as claimed by plaintiff, then plaintiff is entitled to recover the sum of $32.01.

The case turns upon the question as to whether Mr. Miller, an employé of the defendant company, had authority to and did make the alleged contract with plaintiff. The sole point argued by learned counsel for appellant is that on the record the court erred in submitting the case to the jury. Appellant contends that its employé, Miller, had no authority to make contracts of any kind for the company, and that there is no proof of any such authority on the part of said Miller. On this point respondent's general manager, Mrs. G. P. Johannes, a witness for respondent, testified that on the morning of the 7th of January, 1913, she went to the coal yard of the defendant company and inquired as to who had charge of the hiring of teams. The man in charge of the yard said that:

"If I had teams, to send them on; that he could put them on. I told him I didn't want to put them on under those conditions, so he gave me the telephone number of Mr. Miller. This was early in the morning, before office hours."

In answer to the question, "Who was Mr. Miller?" she replied:

"The representative of the Union Fuel Company, `the one who has charge of the hiring of teams,' he said."

Mrs. Johannes testified that she then telephoned Mr. Miller and —

"told him that in the summer of 1912 I had hired their teams and paid them $5 a day. I haul sand, and I hired their teams for that purpose. Two years previous to that I had hauled coal for them, and the following winter I refused to haul for them, simply because you couldn't make anything — not enough to pay your...