Loveland v. Chapman
| Decision Date | 29 December 1924 |
| Citation | 267 S.W. 70,218 Mo.App. 679 |
| Parties | THEODORE LOVELAND and JAMES L. RECORDS, Appellants, v. E. E. CHAPMAN and J. W. ELLIOTT, Respondents. |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Cooper County.--Hon. Henry J Westhues, Judge.
AFFIRMED.
Judgment affirmed.
John Cosgrove and D. W. Cosgrove for appellants.
W. W Kingsbury and Roy D. Williams for respondents.
This is an action to recover on six promissory notes, one for $ 22 and five for $ 80 each, all dated November 29, 1921, the first due three months after date and the others in four five six, seven and eight months, respectively, with interest at six per cent per annum after maturity. These notes were given in payment for three musical instruments called "golden throated claxtonolas" and twelve double disc records.
On the date on which said notes were given, defendant J. W. Elliott gave a written order (or contract) signed Elliott & Chapman, by J. W. Elliott, by the terms of which defendants were to act as agents in the sale of said musical instruments for the manufacturers thereof who are the plaintiffs herein. The order, or contract, a printed instrument of considerable length, was entered into at Pilot Grove, Mo., on the date above mentioned, at which time defendant Chapman was absent from his place of business. The order was received by plaintiffs in Iowa City, Iowa, on December 1, 1921, and on the following day plaintiffs received a letter from J. W. Elliott dated November 29, 1921, asking them to hold the order until Mr. Chapman's return, and stating that he (Elliott) had entered into a contract with plaintiffs' agents W. G. Proctor and J. L. Swagart, subject to the approval of Mr. Chapman on his return,
On December 3, 1921, defendant Chapman wrote plaintiffs a letter, as follows:
The pleadings and proof show that Theodore Loveland and James L. Records were partners doing business at Iowa City, Iowa, under the name of Brenard Manufacturing Company. The evidence shows that four days after the receipt of Mr. Elliott's letter of November 29th, the musical instruments were shipped. Defendants refused to receive them and they were finally returned to plaintiffs. The case was tried to a jury and the verdict was for defendants. Motion for new trial was unsuccessful and plaintiffs appeal.
The petition which is in six counts alleges the plaintiffs are partners doing business under the firm name of Brenard Manufacturing Company; that defendants are partners in business at Pilot Grove, Missouri, and for a long time prior to the dates mentioned in said petition had been doing business under the firm name of Elliott & Chapman and have held themselves out to the public as such partners. The various counts of the petition describe as exhibits the notes sued upon; each count asking judgment on the note therein described with six per cent interest from maturity, and that plaintiffs are the owners and holders of said notes.
Defendants filed separate answers. The answer of Elliott was not verified when filed but at the close of plaintiffs' evidence and over the objection of plaintiffs, the court permitted verification of said answer. The separate answer of defendant Elliott states that at the time of the execution of the notes sued upon, and for a long time prior thereto, a partnership had not existed between himself and defendant E. E. Chapman, and that he did not own any interest in the business of E. E. Chapman at Pilot Grove, Missouri; that he had no authority to execute contracts or notes for the said Chapman; that at the execution of the notes and order for the merchandise taken therewith such lack of power and authority was explained to and understood by W. G. Proctor, the agent and representative of plaintiffs to whom such order and notes were delivered; that there was at that time a full understanding between defendant and said agent and representative that all of said papers were to be of no effect until ratified and approved by said defendant Chapman; that the same were never ratified or approved by said Chapman; that plaintiffs were notified long prior to the shipment of any merchandise upon said order; that plaintiffs have recognized said agreement between their said agent and this defendant; that such goods were returned to plaintiffs and are now in their possession, and that there is a failure of consideration for the notes sued upon.
The answer further avers that the notes were obtained from defendant through fraud and deceit on the part of plaintiffs' agent, W. G. Proctor, in this, that defendant Elliott, by reason of infirmities from which he had suffered for several years, and was suffering at the time of the execution of said notes, was unable to comprehend the meaning of lengthy and finely printed documents and was obliged to rely upon the representations of plaintiffs' said agent as to the contents of the documents signed as aforesaid; that said agent falsely and fraudulently and with intent to deceive defendant stated that the said order was subject to countermand at any time, when, as a matter of fact said document expressly stated therein that the same was not subject to countermand; and that said agent with fraudulent intent did not read to defendant that clause in said document, or order, which provided that the same was not subject to cancellation and that defendant was thereby induced...
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