Mathes v. Switzer Lumber Co.

• Decision Date: 07 July 1913
• Citation: 158 S.W. 729
• Parties: MATHES v. SWITZER LUMBER CO.
• Court: Missouri Court of Appeals

158 S.W. 729

MATHES v. SWITZER LUMBER CO.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. ACTION (§ 28) — CONTRACT OR TORT — WAIVER OF TORT.

Conversion may be waived and suit brought on the implied promise to pay in the nature of assumpsit.

2. EVIDENCE (§ 183) — SECONDARY EVIDENCE — CONTENTS OF INSTRUMENTS.

Contents of an instrument cannot be shown by parol in the absence of proof that the instrument is lost or beyond the power of the party introducing the evidence to produce it.

3. PRINCIPAL AND AGENT (§ 22) — EXISTENCE OF RELATION — EVIDENCE.

The relation of principal and agent cannot be established by the acts and conduct of the alleged agent.

4. EVIDENCE (§ 258) — DECLARATIONS OF AGENT — ADMISSIBILITY.

The relation of principal and agent must be established before evidence of the declarations and conduct of the agent can be proved, unless the principal knew thereof and ratified the acts of the agent.

5. PRINCIPAL AND AGENT (§ 23) — EXISTENCE OF RELATION — EVIDENCE.

Where plaintiff sold 5,000 ties to a third person, who sold them to defendant, and they were loaded by the third person's men in the presence of an inspector who assured plaintiff that defendant was good for additional ties taken, and plaintiff demanded from defendant payment for the additional ties, a letter by defendant to plaintiff, reciting that he had no information concerning ties except the purchase of the 5,000 delivered by the third person and shipped out by defendant, did not show that the inspector was defendant's agent, and his declaration was not binding on defendant.

6. PRINCIPAL AND AGENT (§§ 19, 149, 173) — TRANSACTIONS WITH AGENT — LIABILITY.

One who acts and relies on the word of another, who represents himself to be the agent of a third person, does so at his peril, and to recover from the third person he must show the agency or that the third person accepted the benefits of the acts of the supposed agent and ratified his unauthorized act.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by W. D. Mathes against the Switzer Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

I. V. McPherson and James A. Potter, both of Aurora, for appellant. G. W. Thornberry, of Galena, and W. B. Skinner, of Mt. Vernon, for respondent.

FARRINGTON, J.

The plaintiff recovered judgment against the defendant for the sum of $668.40 in a suit instituted in Stone county and afterwards removed on change of venue to Lawrence county. The amount sued for was $677.46, the alleged value of 1,671 railroad cross-ties. The answer was a general denial.

The evidence offered on the part of the plaintiff showed that he was the owner of 5,000 ties on the railroad right of way in the town of Galena, Mo., which he sold to one Wolf, a tie contractor. Wolf in turn sold the 5,000 ties to the defendant and received the money therefor from the defendant by draft or check when he made the sale and turned over to the defendant the bill of sale from plaintiff to him. Wolf then paid the plaintiff. Some weeks later a tie inspector, whose name, age, size, and appearance seem to be unknown to any one taking part in the trial, according to the record, came to Galena and inspected the 5,000 ties. These ties, which were sold by the plaintiff to Wolf and by Wolf to the defendant, were loaded by Wolf's men at the time the unknown inspector was in Galena. But plaintiff claims that at the time these ties were loaded on the cars, the men continued to load ties belonging to the plaintiff to the number of 1,671; he testified that when he saw them loading these additional ties he went to the unknown inspector and talked about stopping the men as he had not received any pay for them, but that the unknown inspector said the Switzer Lumber Company was good for them. On this assurance, without any contract as to the value or price, and evidently believing the unknown inspector, the plaintiff allowed the 1,671 ties to be loaded and shipped away, making no further inquiry and requiring no other evidence of the taking than the assurance of the unknown inspector that the Switzer Lumber Company was good for them. Some time after this occurred, Wolf disappeared and has not since been heard of by the witnesses who testified in this case; so, also, has the unknown tie inspector. The ties were loaded several weeks after May 6, 1909. After waiting for some time, the plaintiff wrote a letter to the Switzer Lumber Company, the defendant herein, demanding pay for the extra 1,671 ties which were loaded and shipped at the same time the 5,000 ties were out. In reply the defendant on October 7, 1909, wrote a letter to the plaintiff which was introduced in evidence by the plaintiff and which reads as follows:

"Kansas City, Mo., October 7, 1909. W. D. Mathes, Galena, Mo. — Dear Sir: Your letter of the 6th is received. It is not clear to me what you are writing about; the only record I have of any transaction with you is a bill of sale signed by you on May 6th, covering 5,000 6×8 inch ties — 4,560 No. 1 at 38c, and 350 No. 2 at 18c, total, $1,830.00, receipt of which amount you acknowledged in that bill of sale. These ties were then delivered to this company by Mr. E. G. Wolf under his bill of sale to us, and we shipped the ties out. The above is all the information I have regarding any ties bought from you. Your letter is the first news I have had that there was any dispute, but if it refers to the ties above mentioned I do not see that this company has any interest in the matter. Yours truly, L. B. Moses, Northern Sales Agent.

"Copy to Mr. E. G. Wolf, Springfield, Mo., with copy of Mathes' letter."

Plaintiff offered testimony to show ...