Lindauer v. Meyberg

• Decision Date: 07 June 1887
• Parties: B. LINDAUER ET AL., Respondents, v. J. MEYBERG ET AL., Appellants.
• Court: Missouri Court of Appeals

27 Mo.App. 181

B. LINDAUER ET AL., Respondents, v. J. MEYBERG ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

June 7, 1887

APPEAL from the Laclede County Circuit Court, W. S. WALLACE, Judge.

Affirmed.

J. P NIXON and M. N. & LEE SALE, for the appellants.

JAMES MORAN and G. W. BRADFIELD, for the respondents.

OPINION

THOMPSON J.

The defendants on this record levied an attachment upon certain goods, as the property of H. Hoppe, their debtor. The plaintiffs interpleaded, claiming the goods as their own. The issue made upon the interplea was tried by the court sitting as a jury, and judgment was given for the interpleaders, from which the attaching creditors have appealed.

The substantial facts were that Hoppe was carrying on business as a retail merchant at Lebanon, Missouri, and, finding himself embarrassed, wrote or telegraphed to several of his creditors, proposing to go out of business, and to return to them such of the goods, which he had purchased of them on credit, as remained unsold. Among the creditors to whom Hoppe wrote were the firm of Meyberg & Rothchilds Brothers, a partnership firm doing business in St. Louis, and, also Rothchild Brothers & Company, Hart Brothers, and Lindauer Brothers & Company, three partnership firms doing business in Chicago. Mr. Rothchild, of Rothchild Brothers & Company, went to Lebanon, and there, professing to represent the three Chicago firms, employed Mr. Moran, an attorney-at-law, to represent the three firms in the transaction which was about to take place. Mr. Faulk, also came to Lebanon, representing the interest of the St. Louis firm of Meyberg & Rothchild Brothers. Mr. Hoppe proceeded to invoice his goods, and to set apart to these four creditors the goods which he had purchased from them respectively, and which he still had on hand. He delivered to Mr. Rothchild, in person, such goods as he had purchased of Rothchild Brothers & Company, and Mr. Rothchild boxed them up and shipped them to Chicago. He, also, set apart to Mr. Faulk the portion which he had on hand of goods which had been purchased from Meyberg & Rothchild Brothers, of St. La. He also boxed up and deposited at the railway station, at Lebanon, the goods which he had set apart for Lindauer Brothers & Company and Hart Brothers, of Chicago. But Mr. Faulk, being dissatisfied with what his firm was receiving, caused the goods which had been set apart to Lindauer Brothers & Company, and which had been deposited at the railway station, in three boxes marked with their address, to be attached, the grounds of the attachment being that Mr. Hoppe was about to remove out of the state, with intent to change his domicile, and was about to remove his property and effects out of the state, with intent to hinder, delay, and defraud his creditors. The evidence tended to show that these three boxes of goods had not been delivered to the station agent, at the time when they were attached by the sheriff, but had been merely unloaded from the wagon for the purpose of being so delivered.

At the trial, the question of the ownership of the goods was made to turn upon the inquiry whether they had been delivered to the agent of Lindauer Brothers & Company, the interpleaders. There was no evidence tending to show that they had been delivered to any agent of these interpleaders, unless Mr. Moran was their agent; and whether Mr. Moran was their agent was the whole question in the case. It seems that the attaching creditors went to trial supposing there would be no evidence that Mr. Moran had, prior to the attachment, been appointed to represent the interpleaders, and supposing that the case would turn upon the question of law, whether a deposit of the goods at the railway station, without their having been accepted by the station agent for shipment, would be tantamount to a delivery to the interpleaders. But Mr. Moran disappointed this supposition by testifying that he had, prior to the attachment, received authority to represent the interpleaders in the premises. He said: " I was employed by Rothchild to act for these three houses, and they have recognized me as their attorney, and dispatched me to ship goods before the attachment suit had commenced." He also testified, at a later stage of the trial: " Mr. Rothchild received the goods on Saturday and Sunday, and left at four o'clock Monday morning. I, as his attorney, attended to his matters for him, and directed Hoppe to get all the goods over to the depot as soon as he could. * * * I received telegrams from Hart Brothers, and Lindauer Brothers, and A. M. Rothchild, sent from Chicago and Carthage, Missouri, on Monday, the twenty-fifth of May, 1885, telling me to receive the goods and ship the goods to them. I did not save these dispatches, and none of them are in my possession now. The substance of the dispatches was to take the goods and ship them to Chicago, Illinois. I have made search for the dispatches where I would have them, but can not find them." The attachment was sued out and levied on May 27.

This testimony, if believed by the trier of the facts, as it must have been, established the agency of Moran for the interpleaders, to receive the goods for them, which, as his testimony, elsewhere given, shows he did. As there was no direct contradiction of this evidence, it was necessarily conclusive of the case in favor of the interpleaders, unless an objection to it, which was made at the trial, and which is pressed upon our attention, is to be regarded as a sound one.

This objection was that the statements of the witness, as to receiving the telegrams, was not the best evidence. The witness having stated that the telegrams had been lost, that he could not find them, after search in the place where he would have kept them, a sufficient foundation was laid for admitting secondary evidence of their contents, and the court properly overruled the objection.

These observations necessarily dispose of the other assignment of error, that the court erred to the defendants' prejudice in allowing Mr. Moran, testifying as a witness, to prove his agency by the declaration of Rothchild, another agent. It should be observed that Mr. Moran testified that he had no knowledge of the authority of Mr. Rothchild to represent these interpleaders, other than that derived from Rothchild himself. The doctrine that agency can not be proved by the unsworn declarations of the person claiming to be acting as agent, is generally applied in cases where it is sought to charge the supposed principal with the responsibility for the acts of the pretended agent. But we are not...