Meux v. Haller

• Decision Date: 31 December 1913
• Citation: 179 Mo. App. 466,162 S.W. 688
• Parties: MEUX v. HALLER.
• Court: Missouri Court of Appeals

162 S.W. 688

179 Mo. App. 466

MEUX v. HALLER.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. APPEAL AND ERROR (§ 581) — RECORD — WHAT CONSTITUTES.

In an action begun in justice court, the original statement, which was supplanted by an amended statement, is an abandoned pleading, no longer a part of the record proper, and can be considered on appeal only when incorporated in the bill of exceptions.

2. APPEAL AND ERROR (§ 681) — REVIEW — QUESTIONS PRESENTED FOR REVIEW.

Where the bill of exceptions did not contain plaintiff's original statement, which had been abandoned by the filing of an amended statement in the circuit court, the record does not present for review the question whether the amended statement changed the cause of action from that tried before the justice.

3. PRINCIPAL AND AGENT (§§ 121, 122)—AUTHORITY OF AGENT—EVIDENCE.

The authority of an agent cannot be proved by his own declarations to third parties, though he may testify concerning his authority.

4. APPEAL AND ERROR (§ 204)—PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW —NECESSITY.

Where there is no assignment of error as to the admission in evidence of testimony as to the declarations of defendant's agent concerning his authority, and no specific objections were made thereto, the defendant cannot on appeal complain.

5. PRINCIPAL AND AGENT (§ 54)—AUTHORITY OF AGENT—SUBAGENT.

Ordinarily an agent does not have the power to appoint a subagent or otherwise delegate his authority, unless he is expressly authorized to do so.

6. PRINCIPAL AND AGENT (§ 124)—AUTHORITY —EVIDENCE—QUESTION FOR JURY.

In an action for breach of a contract to purchase peas, evidence of the authority of defendant's agent to contract for the purchase and to fix the price held to raise a jury question.

7. PRINCIPAL AND AGENT (§§ 23, 123)—AUTHORITY OF AGENT—EXISTENCE OF AGENCY.

The existence of an agency or the extent of the agent's authority need not be established by direct proof, but may be inferred from circumstances, or implied from the course of dealing between the principal and agent.

8. PRINCIPAL AND AGENT (§ 124)—AUTHORITY OF AGENT—JURY QUESTION.

Where there is any substantial evidence from which an agent's authority may be fairly and reasonably inferred, the question is for the jury.

9. TRIAL (§ 253)—INSTRUCTIONS—THEORY OF CASE.

Plaintiff claimed that defendant's agent instructed him to buy and ship peas to defendant until notified to stop, and that he would receive $1 for each hamper of peas, plus a commission. On trial defendant waived his right to a commission and sought to recover on the theory of an outright sale of the peas. Held, that an instruction that, if the jury believed that defendant requested and directed plaintiff to buy and ship peas until notified to stop, and promised to pay plaintiff one dollar for every bushel so shipped and plaintiff made the shipment, he is entitled to recover, is not erroneous, as abandoning the theory of an outright sale.

10. PRINCIPAL AND AGENT (§ 194)—ACTIONS AGAINST PRINCIPAL—TRIAL—INSTRUCTIONS.

In an action for breach of a contract for the purchase of peas which plaintiff claimed that defendant's agent had contracted for, an instruction that, in considering the question of the authority of the agent to make the contract, the jury might consider other acts and conduct of the agent of which the defendant had notice, and that, if the agent bought other peas on behalf of the defendant without objection, and defendant paid for them, then the agent's authority to contract with plaintiff might be inferred, is not erroneous in telling the jury that if the agent had authority to purchase for defendant, then the jury might infer he had authority to employ someone else.

11. TRIAL (§ 244) — INSTRUCTIONS — WEIGHT OF EVIDENCE.

The instruction was not erroneous in giving undue prominence to a particular portion of the evidence.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by S. R. Meux against Albert S Block revived, after defendant's death, against Julius Haller, his administrator pendente lite. From a judgment for plaintiff in the circuit court on appeal from a justice's court, defendant appeals. Affirmed.

George B. Webster, of St. Louis, for appellant. Nelson Thomas, of St. Louis, for respondent.

ALLEN, J.

This is an action growing out of a controversy over the shipment of a certain quantity of peas. The suit was instituted before a justice of the peace, where plaintiff prevailed; and upon appeal to the circuit court, and a trial de novo there, plaintiff again had judgment, from which this appeal is prosecuted. The cause was originally instituted against one Albert S. Block, conducting a fruit and produce business in the city of St. Louis under the name and style of A. S. Block & Company. It appears that, during the pendency of the suit in the circuit court, Block was declared to be of unsound mind by the probate court of said city, and one Maurice H. Biederman was appointed curator of his estate. The cause was thereupon duly revived against said Biederman as such curator, and resulted in a judgment against the latter, from which he prosecuted the appeal to this court. It further appears that thereafter, during the pendency of the appeal here, Block died, and the cause has been revived against the administrator pendente lite of his estate.

Plaintiff filed in the circuit court an amended statement of its cause of action, upon which statement and the answer filed thereto the cause proceeded to trial. This amended statement avers, in substance, that on or about May 20, 1909, the defendant, Albert S. Block, by his duly authorized agent, requested and directed plaintiff to buy peas at Keling, Tenn., and ship the same to defendant until notified by the latter to stop; that defendant promised to pay plaintiff $1 for every hamper of peas so shipped, and, in addition thereto, a commission for plaintiff's services of 3 per cent. upon all such shipments. And it is averred that in pursuance of such agreement plaintiff shipped on divers dates a total of 556 hampers of peas, whereby defendant became indebted to plaintiff in the sum of $556. And plaintiff expressly waives and relinquishes his claim for the said commission, acknowledges that defendant had paid him $40 on account of said shipments, then makes a voluntary credit upon the alleged indebtedness of the defendant to him in the sum of $16, and prays judgment against defendant for $500, and interest. The answer makes specific denials of the pertinent allegations of the petition, and avers that "all and any peas sent by plaintiff to defendant were sent on consignment, and that a full complete statement of what was done with said peas by defendant, while acting for and on behalf of the plaintiff, has by the defendant been made to plaintiff."

The evidence discloses that the plaintiff resided at Keling, Tenn.; that in May, 1909, he entered into an oral agreement with one Guillot respecting the shipment of peas to defendant. There is a controversy as to just what was the agreement made. It seems that plaintiff had some peas of his own which he had raised, and he testified that Guillot told him to ship these and to buy others and ship them, and that he would receive $1 per bushel for all that he might ship to defendant, and, in addition, 3 per cent. upon the sale price of the peas which he might purchase from others and so ship. And this, in substance, is corroborated by witnesses who were present at the time of the conversation between plaintiff and Guillot. At the time of this agreement Guillot paid plaintiff $40; and plaintiff testified that Guillot agreed to send the remaining money "by wire," upon shipment being made. Another witness testified that Guillot states that he would wire to defendant to send plaintiff a check. It appears that after shipping the peas, and not hearing from defendant, plaintiff called up the latter's place of business in the city of St. Louis over the long distance telephone, and some conversation was had with respect to the matter; but just what was said does not appear. On the same day defendant wrote plaintiff regarding the shipment, stating that the peas in question had become heated in transit, that the car containing the same had been wrecked, and that such of the peas as could be disposed of at all had been sold for a nominal price.

On behalf of plaintiff there was testimony of other witnesses who stated that Guillot, at or about the time of the transaction with plaintiff, bought peas from them outright, paying therefor...