Kaden v. Moon Motor Car Co.
| Decision Date | 08 April 1930 |
| Docket Number | 20864 |
| Citation | 26 S.W.2d 812 |
| Parties | RICHARD O. KADEN, (Plaintiff) Appellant, v. MOON MOTOR CAR COMPANY, (Defendant) Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, City of St. Louis. Hon. Victor H Falkenhainer, Judge.
Walter E. Bennick, COMMISSIONER. Haid, P. J., and Becker and Nipper JJ., concur.
This is an action for damages in the sum of $ 2,608.12, alleged to have been sustained by plaintiff in connection with the purchase of a certain automobile manufactured by defendant. At the close of plaintiff's case, the court gave a peremptory instruction to find for the defendant, whereupon plaintiff took an involuntary nonsuit; and from the refusal of the court to set the same aside, he has duly perfected his appeal.
On March 6, 1926, plaintiff, who is a resident of Cleveland Ohio, purchased a Moon automobile from one E. J. Flesher of that city, who was doing business under the name of Flesher Motor Sales Company. His call upon Flesher was prompted by an advertisement of defendant which he had seen in the Cleveland Plain Dealer, in the lower part of which appeared the statement, "Sales and service by the following direct factory dealers", where, along with six others, was the name of the Flesher company. This advertisement, with others of a similar nature, wee excluded by the court on defendants objection, and the propriety of such ruling is one of the points raised on this appeal.
Plaintiff testified that when he called at Flesher's place of business, he saw signs with the words, "Moon Motor Car Company", "Diana 8", "Factory Dealer for the Moon and Diana Cara", and perhaps "Flesher Moon Motor Car Company", In the course of the conversation he informed Flesher that he would not buy an automobile unless Flesher was a direct factory dealer, which the latter informed him he was. Plaintiff thereupon purchased a Moon car, exchanging therefore an Anderson oar for which he received an allowance of $ 400, paying $ 669.25 in cash, and giving his negotiable promissory note for $ 666.23, secured by a chattel mortgage on the new automobile.
On March 25, 1926, the Moon car was delivered, and after using it for two days, plaintiff became dissatisfied with his bargain, and again called on Flesher, who suggested that he return the Moon oar and purchase a Diana, which was manufactured by the same factory. He also informed plaintiff that he was the factory dealer for both makes of automobiles.
Plaintiff thereupon returned the Moon oar to Flesher, and paid him an additional sum of $ 405. He asked Flesher to transfer the mortgage from the Moon to the Diana, but Flesher informed him "that the people didn't like to do that", and that he would be required to cancel the mortgage on the Moon and execute a new one on the Diana. A new note for $ 657.60 was accordingly given by plaintiff, and a new mortgage executed to secure the same.
The Diana car was not delivered, but meanwhile Flesher negotiated the note to parties referred to in the evidence as Hare & Chase, who subsequently notified plaintiff that a payment was due from him under the terms of the mortgage. He thereupon called on Flesher in regard to the matter, and was assured by him that "it would be straightened out". It seems that Flesher also told plaintiff that he did not have enough funds on hand to get the car from the distributor, and that the factory would not "O.K. the deal" unless he was able to procure a larger amount of money. Plaintiff thereupon paid Flesher the sum of $ 575, and received from him a receipt for that amount in final payment of the Diana oar.
Later Flesher went out of business, having neither delivered the Diana oar nor returned the Anderson car, and in addition Hare & Chase obtained a Judgment against plaintiff on the note for the aggregate sum of $ 664.32, which he was compelled to pay.
There was further testimony that the several advertisements which had appeared in the Cleveland papers had been prepared by the D'Arcy Advertising Agency, of St. Louis, down to but not including the words, "Moon Motor Car Company of Ohio"; that in each instance the advertisement was submitted to defendant for its approval; and that the advertising agency made the necessary arrangements for the Insertion of the advertisements in the papers, and paid the papers therefor, and in turn billed defendant for the cost of the entire advertisement, including that portion of each which It had not prepared.
Plaintiff's petition was based upon the theory that Flesher was the agent of defendant, and that he had sold the two automobiles to plaintiff as such agent. While defendant's formal answer was a general denial, it actually does not deny any of the facts concerning either of the trades between plaintiff and Flesher, but joins issue solely on the question of whether Flesher was its agent, or was acting for it in any fiduciary capacity when he sold the automobiles to plaintiff.
The burden of plaintiff's complaint...
To continue reading
Request your trial