Masdon v. Stine

• Decision Date: 13 November 1933
• Docket Number: No. 5247.,5247.
• Citation: 66 S.W.2d 579
• Parties: MASDON et al. v. STINE et al.
• Court: Missouri Court of Appeals

66 S.W.2d 579

MASDON et al. v. STINE et al.

No. 5247.

Springfield Court of Appeals. Missouri.

November 13, 1933.

Rehearing Denied January 10, 1934.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

"Not to be published in State Reports."

Action by E. C. Masdon and another, doing business as the Home Oil & Gas Company, against William Stine and the Maryland Casualty Company. From an adverse judgment, defendants appeal.

Affirmed as to defendant first named, and reversed and remanded, with directions, as to defendant last named.

Allen, Moser & Marsalek, of St. Louis, for appellant Maryland Casualty Co.

Ward & Reeves, of Caruthersville, for respondents.

SMITH, Judge.

This is a suit on a fidelity bond. There is no controversy over the pleadings, and practically no great difference as to the facts of the case as stated by both parties in their statements. We have adopted almost in full the statement of facts of the attorneys for the Maryland Casualty Company as our statement of the facts in this case.

The plaintiffs brought this suit against the defendants to recover upon a bond securing them against loss due to larceny or embezzlement by their employee, the defendant Stine. The case was tried before the court and a jury, and resulted in a verdict and judgment for the defendants. In due time the plaintiffs filed a motion for a new trial, which the court sustained, specifying no reason for his action. The defendants, by due steps, perfected this appeal.

The facts were these: Plaintiffs were engaged in operating an oil and gas station in Caruthersville. The defendant William Stine was operating a small business in Caruthersville, greasing cars and repairing and selling a few tires. About November 25, 1930, the plaintiffs took over the sale of tires, tubes, and accessories for the United States Rubber Company, and at the instance of the plaintiffs defendant Stine undertook to manage this business for them.

Under the arrangement between them, the business was conducted from a building located at the rear of the plaintiffs' oil and gas station. Defendant Stine was to receive a percentage of the profits as his compensation.

At the outset a contract was entered into between plaintiffs and the United States Rubber Company, which contract included a note for approximately $14,000. The contract and note were signed by defendant Stine, as well as by the plaintiffs.

The invoices for the merchandise shipped by the United States Rubber Company were made out against the plaintiffs. The arrangement was for Stine to sign for the goods when they came in, and he was then charged by plaintiffs with the amount of the invoice. Stine sold some of the merchandise locally; some of it was placed in the hands of dealers in the county on consignment. A record was kept of each item of merchandise, by means of a system of coupons or receipts. When goods were sold or placed out on consignment, a record of the transaction was made in triplicate; one copy being retained by Stine, one by the purchaser or consignee, and the other was delivered to plaintiffs' bookkeeper. When goods on consignment were sold and the money received by Stine or his collector, the coupon in the hands of the dealer was taken up and marked with the letter "C" and given to the plaintiffs' bookkeeper for recording. The same procedure was followed if goods were returned by a customer or consignee to Stine, in which case the coupon was marked "R."

The arrangement was for Stine to collect the proceeds of all sales of merchandise. He deposited the checks or money to his own account in the Bank of Caruthersville and made periodical payments to the plaintiffs, with which he was credited on his account with them. He was charged on the plaintiffs' books with the net amount of the invoices as received from the United States Rubber Company. According to plaintiffs, Stine was entitled to retain as his profit any amount he received over and above the invoice price; this excess being about 25 per cent. of the net price on city sales and 15 per cent. for sales in the surrounding territory. There was a 2 per cent. cash discount that was kept by plaintiffs; there was also a bonus allowed by the rubber company, which was divided between Stine and the plaintiffs. It was Stine's contention, however, that he was to give the plaintiffs 5 per cent. of the selling price of the merchandise as their share of the profit; a contention in which he was sustained by a written contract introduced in evidence.

The evidence shows that the payments made by Stine to plaintiffs were not intended to represent payments of the specific items collected by Stine, but were merely payments against the entire balance due the plaintiffs. The plaintiffs' bookkeeper, Mr. Peck, stated that it was difficult to say whether Stine ever paid to Martin and Masdon the money for the returned coupons that represented cash, due to the way it was handled. Mr. Stine made deposits in the Bank of Caruthersville. He turned the tickets over once a week, and settlement was made with the Home Oil & Gas Company once a month. The money could have been deposited in the bank and part of it put in the settlement made. He had been making monthly settlements, varying in amounts, from the time he started with the Home Oil & Gas Company. On some occasions he made a couple of payments a month when he had the money. Stine's testimony shows that these payments were made in round amounts, and did not represent payment for any particular goods sold. The evidence of the plaintiff Masdon is to the same effect.

Stine had only one bank account, out of which, in addition to the payments to plaintiffs, he also paid the expenses of operating the tire business, also the receipts and disbursements of the repairing and greasing business and of a trucking business which he also conducted.

Stine employed a man to deliver the tires; also a salesman. In the shop he had a lady and a couple of boys. He also paid rent for the premises he occupied. Mr. Masdon testified that Stine was paying these expenses out of the money he took in. Stine testified that what he did not pay out for overhead expenses he gave to Masdon on the tire account. He gave the plaintiffs a check each month for every penny in the account except $75 or $80.

While the arrangement was in effect, a large quantity of merchandise, which had originally been placed by plaintiffs in the hands of two other parties, namely, Bob Frakes and L. W. Weaver, of Steele, Mo., was transferred to defendant Stine's warehouse, and Stine's account was charged with the amounts theretofore held against Weaver and Frakes. The goods thus charged against Stine amounted to $5,057. Mr. McGinnis, a bookkeeper for the plaintiffs, checked them into Stine's business. Stine did not sign for them, and it appears that there was a dispute regarding the items.

In connection with his trucking business, Stine testified that he purchased four trucks, but never succeeded in getting them paid for, and lost them. He started in the trucking business in October or November, 1931. He received in all about $6,000 for trucking, deposited the money in the same account with the money he received from the tire business, and paid the overhead for the trucking also out of the same account. He did not know whether he made or lost money on the trucking business. One of the trucks was bought from the Shade Motor Company. The Shade Motor Company owed Stine for tires. Stine testified that he allowed this balance to be applied on the cost of the truck at the suggestion of Mr. Masdon, which Mr. Masdon denied.

Mr. Masdon testified that some time in January he received information that Stine had not turned over all the money and property the plaintiffs had furnished him to handle. Witness, in company with his bookkeeper, Mr. Peck, went to see Stine. They were unable to get a December settlement out of him. His testimony was further to the effect that originally Stine had agreed to permit the plaintiffs' bookkeeper to keep his (Stine's) records, as well as the plaintiffs', but that Stine, when the trouble arose, renounced this arrangement. There was a dispute as to the amount of goods out on consignment, which the records showed to be seven to nine thousand dollars, but an investigation made by them showed that Stine had out only from $3,500 to $4,000. When questioned about this by witness, Stine said there must be a mistake. Further investigation disclosed that a number of accounts which plaintiffs' records showed to be unpaid had been collected by Stine.

The checks by which these accounts were paid were introduced in evidence by plaintiffs. With the exception of Plaintiffs' Exhibit 8, the Van Ausdall check for $167.45, all of these checks were indorsed by one or the other of Stine's employees, and deposited to his account in the bank, according to the usual practice. Masdon testified that Stine had a record showing that these accounts were not paid, and that, when the investigation was made, it showed that the accounts had been paid. With reference to these checks, Stine testified that, with the exception of the Van Ausdall check, they had been deposited in the bank, and that Mr. Masdon had gotten the money; that witness had paid him $700 "the last two weeks" in cash.

Plaintiffs' bookkeeper testified that after December 1, 1931, he received very few coupons from Stine showing payments of cash or return of goods. He inquired of both Stine and Mr. Pikey, one of Mr. Stine's employees, whether they were collecting on any of the bills. The witness said he got very little results at that time, and that the matter ran along until some time in January, when he called upon Stine with Mr. Masdon, and at this time Masdon told them he was not going to turn over any coupons; that that was a matter between Stine and Masdon. Mr. Masdon also places this conversation as some time in January. A replevin suit was then filed by the...