Martin v. Connor

• Decision Date: 08 May 1939
• Parties: W. C. MARTIN, RESPONDENT, v. FRANK H. CONNOR, ET AL., APPELLANTS
• Court: Kansas Court of Appeals

128 S.W.2d 309

233 Mo.App. 1024

W. C. MARTIN, RESPONDENT, v. FRANK H. CONNOR, ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

May 8, 1939

Appeal from Circuit Court of Jackson County.--Hon. John M. Cleary Judge.

Judgment reversed and cause remanded.

J. W Farrar, O. C. Phillips and John B. Gage for appellants.

(1) There was no delivery of the bill of sale. Poplin v Brown, 200 Mo.App. 255, 205 S.W. 411; Blackiston v. Russell, 328 Mo. 1164, 1173, 44 S.W.2d 22, 26; Dallas v. McNutt, 297 Mo. 535, 249 S.W. 35, 36. (2) There was no acceptance of the draft by defendants upon which to predicate liability. Sec. 2760, R. S. Mo. 1929; State ex rel. Macon Creamery Co. v. Mix, 220 Mo.App. 426, 7 S.W.2d 290. Also authorities under (3) (b). (3) The trial court erred to the prejudice of appellants in rejecting competent, material and relevant testimony offered by appellants. (a) Defendants having denied that plaintiff sold to them or defendants purchased from plaintiff the cattle as alleged in the petition were entitled to offer any testimony that tended to show that plaintiff never had any cause of action against defendants as alleged, or that defendants bought the cattle from plaintiff. Nall v. Brennan, 324 Mo. 565, 23 S.W.2d 1055, 1056, 68 A. L. R. 684; Service Purchasing Co. v. Brennan, 226 Mo.App. 110, 42 S.W.2d 39, 42, 43; State v. Thompson, 337 Mo. 328, 85 S.W.2d 594, 598; Jones v. Rush, 156 Mo. 364, 57 S.W. 118; Hellmuth v. Benoist, 144 Mo.App. 695, 129 S.W. 257; Walsh v. Venable, 219 Mo.App. 383, 271 S.W. 1003; Cushing v. Powell, 130 Mo.App. 578, 109 S.W. 1054; State v. Williams, 48 Mo. 210-212; Griffith v. Continental Casualty Co. (Mo.), 235 S.W. 83; Yancey v. Clarkson, 182 Mo.App. 435, 168 S.W. 236; Hope Lumber Co. v. Stewart, 241 S.W. 679; 7 Corpus Juris, Secundum 127. (b) The unaccepted draft and undelivered bill of sale, unsigned by defendants and drawn subsequent to the alleged delivery of the cattle, does not constitute such a written contract of executory sale or complete written memorandum of an agreement, signed by the party to be charged, as to justify the exclusion of all evidence, as to the real nature of the transaction entered into by the plaintiff and the true identity of the purchasers of his cattle. Mosby v. Smith, 186 S.W. 49, 194 Mo.App. 20; Barrett v. Davis, 104 Mo. 549, 559, 16 S.W. 377, 379; Kimball v. Donald, 20 Mo. 577; Clement v. Yates, 69 Mo. 628; Thompson v. Main Street Bank, 226 Mo.App. 246, 42 S.W.2d 56, 221; Earle v. Woodruff, 274 S.W. 107-109. (4) The court erred in permitting the plaintiff to state in answer to a leading question that he delivered the cattle in question to John Clay & Company and in overruling appellants' objection on the ground that the answer was a conclusion and invaded the province of the jury. The court further erred in refusing to permit cross-examination of plaintiff as to the facts, if any, upon which such conclusion was based. Kendall Boot & Shoe Co. v. Bain, 46 Mo.App. 581, 588. (5) The undisputed, competent, documentary evidence disclosed that appellants acted solely as agents for plaintiff. They disclosed their agency and hence are not liable as principals. Hunt v. Sanders (Mo.), 281 S.W. 422; Serat v. Winter, 282 S.W. 66; 3 Corpus Juris, Secundum, p. 119. (6) The peremptory instruction directing verdict for appellants offered at the close of all the evidence should have been granted.

Clay C. Rogers and Mosman, Rogers & Bell for respondent.

(1) Defendants' specifications of error present nothing for review except perhaps the propriety of the ruling upon demurrer. Diamant v. Stein (Mo. App.), 116 S.W.2d l. c. 277; University Bank v. Major, 299 Mo.App. 963, 83 S.W.2d 924; Bennett v. Brotherhood of Locomotive F. & E., 82 S.W.2d l. c. 602-603; Magee v. Hayden (Mo. App.), 111 S.W.2d 239; Kleine v. Kleine (Mo. App.), 111 S.W.2d 242. (2) Since it stands admitted that: (a) Tom Fields was the agent of defendants in the transaction; (b) He provided the blank upon which the bill of sale was executed; (c) He executed and delivered to the plaintiff the draft in payment for the cattle; (d) Defendants paid the railroad freight charges on the cattle; (e) The cattle were consigned to the defendants as shown by the freight bills; (f) The defendants actually received and accepted the cattle; the sale was, as a matter of law, complete. Turner Looker Co. v. Hindman, 298 Mo. 61, 250 S.W. 388. Title passed with delivery of possession of the cattle. A bill of sale was not necessary to transfer title. W. W. Kendall Boot & Shoe Co. v. Bain, 46 Mo.App. 581. The interpretation of a contract of sale is for the court and not the jury. State Bank of Freeport v. Cape Girardeau & C. R. Co., 155 S.W. 1111, 172 Mo.App. 662. (3) As the defendants were the drawers of the draft upon themselves, acceptance thereof was not necessary to bind them: (a) Presentment for payment is not necessary to charge the party primarily liable on the instrument. Sec. 2698, R. S. 1929; (b) The draft was not a "Bill of Exchange" because it was drawn by defendants upon themselves, whereas a "Bill of Exchange" is an order drawn upon another. Sec. 2754, R. S. 1929. (c) Where the bill drawer and the drawee are the same person, the holder may treat the instrument as a "Bill of Exchange" or a promissory note. Sec. 2758, R. S. 1929. (d) By making and drawing the instrument, the defendants admitted the existence of the payee (plaintiff) and his capacity to endorse (Secs. 2688, 2689, R. S. 1929; Webb v. Rolla Produce Co. (Mo. App.), 234 S.W. 1068, l. c. 1071. (4) Since the petition pleaded a completed transaction and contract of sale and a repudiation thereof, and since the evidence showed a bill of sale signed by plaintiff and a draft in payment of the cattle executed by defendant, regular upon the face thereof, the claimed defense of invalidity of the bill of sale and draft is an affirmative defense and evidence in support of that claimed defense was not admissible under the pleadings. Carter v. Metropolitan Life Ins. Co., 275 Mo. 84, 204 S.W. 399; McDearmott v. Sedgwich, 140 Mo.App. 182, 39 S.W. 776; School Dist. v. Sheidley, 138 Mo.App. 690, 40 S.W. 656; Bell v. Warehouse Co., 205 Mo.App. 493, 103 S.W. 1014; Shohoney v. Railroad, 231 Mo. 147, 132 S.W. 1059; Ruemmeli-Dawley Manufacturing Co. v. May Department Stores, 231 S.W. 1031; Rock v. Petty Store Co., 224 S.W. 5; Greenfield v. Purple Shoppe, 100 S.W.2d 345. (5) The court did not err in permitting the plaintiff to testify that he delivered the cattle in question to John Clay & Company. (a) No proper objection was made to the question and no exception was saved. An objection made after the question has been answered is too late. Wolfson v. Cohen (Mo.), 55 S.W.2d 677; Schulz v. San Francisco R. Co., 319 Mo. 8, 4 S.W.2d 762; Boyd v. Kansas City, 237 S.W. 1001. (b) The appellants asked the plaintiff the same question several times, and hence waived any claim of error. (6) Appellants were not acting as agents for plaintiff.

OPINION

SHAIN, P. J.

In this action the plaintiff seeks to recover against defendants for damages growing out of an alleged sale by plaintiff to defendants of one hundred and ninety-six yearling steers.

The defendants are members of an alleged co-partnership, engaged in the business of buying and selling live stock on commission under the name of John Clay & Company.

For cause of action, plaintiff states:

"Comes now the plaintiff, and with leave of court, files this, his amended petition for damages bringing in new parties defendant, and for his cause of action states that the defendants Frank H. Connor, A. F. Wilson, C. G. Smith and Maxwell B. Morgan are and were at all of the times mentioned herein partners and as such were engaged in business in the name of John Clay and Company, and as such partnership was and is engaged in the business of buying and selling livestock.

"'Plaintiff states that on the 5th day of November, 1937, in Sherman County, Texas, he sold to the defendants one hundred ninety-six (196) yearling steers at and for the agreed price and sum of Eleven Thousand Three Hundred Ninety-one Dollars and Seventy five cents ($ 11,391.75); that thereafter and about the 9th day of November, 1937, the defendants repudiated said sale and refused to pay the agreed price to the plaintiff, and that thereafter and on the 10th day of November, 1937, the plaintiff caused said cattle to be sold for the sum of Eight Thousand Eight Hundred Nineteen Dollars and Seventy-four cents (8,819.74) which was the best price obtainable and that by reason of the defendant's breach of said contract of sale, the plaintiff has been damaged in the sum of Two Thousand Five Hundred Seventy Two Dollars and One Cent ($ 2,572.01); that he has made demand upon the defendants for said sum, and that the defendants have refused and failed to pay the same.'"

Defendants make answer as follows:

"Come now the above named defendants, and enter their appearance in the above entitled court and cause, and file this, their separate answer to the amended petition of plaintiff filed herein.

"Defendants admit that they were at the times herein mentioned and are partners engaged in business in the name of John Clay and Company.

"Further answering, defendants state that they were engaged in the business of buying and selling live stock on commission, but deny that they are or were engaged in the business of buying and selling livestock on their own account.

"Defendants further deny that at the time mentioned in the petition, or any other time, the plaintiff sold to the defendants, the one hundred ninety six yearling steers at and for the price agreed therein or for any other price.

"Defendants further deny that at said time, or any other time they purchased said cattle...