McKelvey v. Marquette Iron & Steel Co., 4754.

• Citation: 24 S.W.2d 702
• Decision Date: 17 February 1930
• Docket Number: No. 4754.,4754.
• Parties: McKELVEY v. MARQUETTE IRON & STEEL CO., Inc.
• Court: Court of Appeal of Missouri (US)

24 S.W.2d 702

McKELVEY v. MARQUETTE IRON & STEEL CO., Inc.

No. 4754.

Springfield Court of Appeals. Missouri.

February 17, 1930.

Appeal from Circuit Court, Howell County; Will H. D. Green, Judge.

"Not to be officially reported."

Action by Fred McKelvey against the Marquette Iron & Steel Company, Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur; otherwise reversed and remanded.

H. D. Green, Jr., of West Plains, for appellant.

Homer Rinehart, of West Plains, for respondent.

COX, P. J.

This is an action to collect from defendant board bills for a number of individuals for which it is claimed the defendant is liable. Trial by jury; verdict for plaintiff for $112.60. Defendant appealed.

The names of the persons and the amount of the board which the plaintiff seeks to recover from defendant are as follows: J. T. Harmon, $12.40; M. J. Lynn, $52.00; J. M. Lynn, $12.00; J. N. and K. J. Lynn, $43.20; Mrs. M. J. Lynn, $13.50; Van Lynn and wife, $31.50; K. J. Lynn, $8.00 — making a total of $172.60, with a payment of $60, leaving a balance of $112.60. Plaintiff recovered for that amount.

There was evidence tending to show that Mr. M. J. Lynn acted as superintendent of defendant's plant at Brandsville, Mo., a small town not far from West Plains and that J. T. Harmon at one time appeared to be in charge of the same plant; that these two men employed and paid the men who worked at that plant, and that M. J. Lynn purchased some material for the use of defendant. There was no evidence except the statements of these two parties tending to show in any way that the defendant ever agreed to pay the board bill of any of these parties until after the bills were made. Plaintiff testified that the first of these parties to board at his house were M. J. Lynn and J. T. Harmon; that, when he presented his first bill for board to them, they said they would have to send it in to the company, and in a few days later they paid their bills due at that time. The only evidence that defendant paid these bills was plaintiff's testimony as to what Lynn and Harmon said and this evidence went in over objection of defendant, and was clearly inadmissible because mere hearsay, and for the further reason that the authority of an agent to bind his principal cannot be shown by statements made by the agent. After all the parties had left plaintiff's house and he had sold his business to another party, the plaintiff went to Brandsville and saw Mr. Harmon and...