OPINION
TATLOW, P. J.
This
case originated in the Probate Court of New Madrid County,
Missouri, upon the plaintiff's filing its demand against
the estate of A. E. Allgier, deceased, based upon three
invoices of merchandise, aggregating $ 459.62, purportedly
sold in 1935 to the firm of Edmonds & Allgier, contractors
and builders, Clarkton and Risco, Missouri.
The
administratrix filed an answer to the demand, denying that
the goods were purchased by the partnership, but not denying
the existence of the partnership. The probate court, by
agreement, tried the case without a jury, and rendered a
judgment in favor of the claimant for the amount of the
demand. The defendant took an appeal to the Circuit Court of
New Madrid County, Missouri, where the case was tried before
a jury, resulting in a verdict for the defendant, concurred
in by eleven of the jurors. The claimant, as the plaintiff
below, has properly appealed the case to this court.
The
case was submitted to the jury on the appellant's
evidence. The respondent offered no evidence.
J. F.
Monnig, being duly sworn, on direct examination, testified on
behalf of plaintiff, as follows:
"My
name is J. F. Monnig. I live in St. Louis, Missouri. I am
Secretary and Treasurer of the Missouri Steel & Wire Company.
I held that office when the merchandise in issue was sold. I
received the letter marked 'Exhibit A' through the
U.S. Mail. I did not ship any merchandise on this letter.
This letter was on the letterhead of Edmonds & Allgier,
Contractors, Risco & Clarkton, Missouri. I received the
letter marked 'Exhibit B' on August 23. I received it
through the U.S. Mail. It is written on the stationery of
Edmonds & Allgier. I received the letter marked 'Exhibit
C' on August 28 (1935). I received it through U.S. Mail.
It was on the stationery of Edmonds & Allgier, too. I did not
ship any merchandise on this letter. A truck driver by the
name of Larton (Lorton) came to our place and gave us an
order for shingles--gave us an order from Edmonds & Allgier.
I immediately called Edmonds & Allgier, on long distance
telephone, at Clarkton, Missouri, and they connected me with
J. C. Edmonds. He said he was buying for Edmonds & Allgier
and the order was O. K. I asked for credit references. He
gave me the names of two, one of which was a St. Louis firm.
I checked on the St. Louis reference and report was that the
firm was good for its obligations. On the strength of that
credit reference, I delivered the merchandise to Mr. Larton.
These three exhibits are shipping tickets. They itemize the
three shipments of merchandise to Edmonds & Allgier. The
total amount, as shown by the delivery tickets and invoices,
thus shipped was $ 459.62. This amount
agrees with the amount set out on the original ledger sheet
which I hold in my hand. The prices charged represent the
fair, reasonable, and market price of the items sold. No part
of the account has been paid. The merchandise was shipped to
Edmonds & Allgier, Clarkton, Missouri."
In
addition to his direct testimony the cross-examination
developed only that the witness had no conversation with
Edmonds except his conversation over the telephone, the date
of which he fixed as September 4th, the date of the delivery
of the goods, and that he had no correspondence or
conversation personally with Mr. Allgier, the deceased.
The
correspondence and shipping tickets were offered in evidence
and consisted of the following:
"Exhibit
A.
"Nothing
too large or too small.
"No
charges on estimations.
"Edmonds & Allgier
"Contractors & Builders
"Clarkton,
Mo. "Risco, Mo.
"Conran,
Missouri
"July
10, 1935
"Missouri
Steel & Wire Co.
"St.
Louis, Missouri.
"Gentlemen:
Please quote us prices on Steeltex Metal Lath, and kindly
send us a catalogue on prices of your material or price lists
on all of your building materials.
"Very
truly yours,
"Edmonds & Allgier, Contractors.
"By
I. C. Edmonds."
"Exhibit
B.
"(Same
stationery form--letter dated August 23, 1935.)
"Gentlemen:
Have you as many as a car or 1/2 car of shingles like the
ones I bought from you. They were seconds, and in a two tab,
or they don't necessarily have to be in a two
tab. Please quote me prices, if you have in return mail.
"Respectfully
yours,
"I.
C. Edmonds."
"Exhibit C.
"Same
stationery form as Exhibit A; letter dated Aug. 28, 1935.
Letter addressed to Mo. Steel & Wire Co. Written in first
person, giving references. Letter signed 'I. C.
Edmonds.'"
"Exhibit D.
"(Shipping
Ticket).
"MISSOURI
STEEL & WIRE COMPANY
"1400
to 1414 Broadway
"St.
Louis, Missouri "At St. Louis, Mo. 8/25 Del. 9/4
"Customer's
Order No. 22712
"Deliver
by call
"Charge
to Edmonds & Allgier
"Address
"Deliver
to Clarkton, Mo.
"No. Packages--Description
|
Price
|
Extension
|
"32 Sq 11 1/3 x 36 Red Hex. Seconds
|
3.22
|
103.04
|
"35 Sq 10 x 36 Green Cut out Seconds
|
4.00
|
140.00
|
" 5 1 gal Muriatic Acid
|
.50
|
2.50
|
245.54
|
"5 containers
|
.10
|
.50
|
246.04
|
"D 22705
|
"Received by Ralph Lorton (signed)."
|
"Exhibit
E.
"(Shipping
Ticket)
"Same
form as above; same billing, date of 9/5/35, shipped to
Edmonds & Allgier, Clarkton, Mo., mdse in amount of $ 174.20.
Shipping ticket signed by 'Ralph Lorton.'"
"Exhibit
F.
"(Shipping
Ticket)
"Same
form as 'Exhibits D & E'. Date of 9/16/35. Mdse of
value $ 39.38 sent to Edmonds & Allgier, Clarkton, Mo. Truck
driver Ralph Lorton executing receipt for delivery of mdse to
him by plaintiff."
"Exhibit
G.
"(Carbon
copy of Letter)
"August
31st, 1935.
"Edmonds & Allgier,
"Clarkton,
Missouri.
"Gentlemen:
We just finished unloading the carload containing the second
shingles and were agreeably surprised to find two very fine
lots of seconds.
. . . .
"If you want any of these, we suggest that
you send in your order at once as we do not believe they are
going to last so awfully long.
"Yours
very truly,
"Missouri
Steel & Wire Co.
"JTM:
MS."
"Exhibits
H, I, J & K" are likewise carbon copies of letters
written by Missouri Steel & Wire Company to Edmonds & Allgier, Clarkton, Missouri, and deal with price quoting or
shipment of merchandise in issue.
"Exhibit
L.
ARTICLE
OF AGREEMENT
"This
article of agreement made and entered into this 15th day of
November, 1935, by and between Consolidated School District
No. 10 of New Madrid County, Missouri, party of the first
part, and Edmonds & Allgier, a copartnership composed of Ira
Edmonds and A. E. Allgier, hereinafter referred to as the
contractors, party of the second part, WITNESSETH:
".
. . (Body of building contract)
"In
Witness Whereof the said party of the first part has hereby
called (caused) these presents to be executed by its
President and attested by its Secretary by authority of its
Board of Directors and second party has executed this
instrument by the signature of A. E. Allgier a member of the
firm.
"Consolidated
District No. 10
"New
Madrid County, Mo.
"By
Earl Cambrian President
"Edmonds & Allgier
"By
A. E. Allgier a member of the firm.
"Attest:
"W.
E. Scobey
"Secretary."
"Exhibit
M.
"This
Agreement made the Fifth day of December, 1934, by and
between I. C. Edmonds and A. E. Allgier, a copartnership
doing business as Edmonds & Allgier, of Clarkton, Missouri,
hereinafter called the Contractors, and the Board of
Education, Consolidated School District No. 10, New Madrid
County, Missouri, Marston, Missouri, hereinafter called the
owner,
"Witnesseth,
. . . (here body of contract)
"In
Witness Whereof the parties hereto have executed this
agreement, the day and year first above written.
"Edmonds & Allgier
"By
I. C. Edmonds
"By
A. E. Allgier
"Con.
Sch. Dist. No. 10
"New
Madrid Co., Missouri
"By J. H. Avery, President
"By
W. E. Scobey, Secretary."
"Exhibit
N.
"This
is a contract made and entered into June 3, 1935, by and
between Edmonds &
Allgier, Clarkton, Mo., and Consolidated Dist. No. 3, New
Madrid County, Conran, Missouri, with execution clause as
follows:
"In
Witness Whereof the parties hereto have executed this
agreement, the day and year first above written.
"Edmonds & Allgier
"By
I. C. Edmonds
"Contractor."
The
abstract further shows:
"No
evidence was offered on behalf of the defendant.
"The
plaintiff offered two instructions, both of which were given,
and the defendant offered one instruction other than its
demurrer, which was also given. The verdict of the jury was
for the defendant. The plaintiff offered no peremptory
instruction."
The
error relied upon by the appellant is the giving of
defendant's Instruction "A," for the reason
that there is no evidence to support it. The instruction so
given is as follows:
"The
court instructs the jury that, if you find and believe from
the evidence that Edmonds ordered the materials from
plaintiff as an individual, then your verdict must be for the
defendant."
The
only evidence that the respondent has pointed out, or that we
have been able to find in the record to support this
instruction, is the letter dated August 23, 1935, on the
letterhead of the firm, signed by I. C. Edmonds, and copied
in the above statement.
The
abstract shows:
"At
the close of the plaintiff's case the defendant filed a
demurrer which was overruled by the court."
In ...