Moffitt-West Drug Co. v. Lyneman

• Decision Date: 11 October 1897
• Citation: 10 Colo.App. 249,50 P. 736
• Parties: MOFFITT-WEST DRUG CO. v. LYNEMAN.
• Court: Colorado Court of Appeals

50 P. 736

10 Colo.App. 249

MOFFITT-WEST DRUG CO. v. LYNEMAN.

Court of Appeals of Colorado

October 11, 1897

Appeal from district court, Arapahoe county.

Action by the Moffitt-West Drug Company against E. Pauline Lyneman for goods sold and delivered. Judgment for defendant, and plaintiff appeals. Reversed.

Thos B. Stuart and Chas. A. Murray, for appellant.

R.D Thompson, for appellee.

BISSELL J.

We cannot discover any evidence in the record by which this judgment can be supported, nor any principle of law on which, accepting the defendant's statement as true, it may be maintained. In 1893, and for a long time before, Mrs. Lyneman had been carrying on a drug business in the city of Denver under the name of the Lyneman Pharmacy. This business was carried on by her husband, as general manager and agent. He conducted the business according to his own judgment and discretion, on capital which Mrs. Lyneman supplied. He bought all the stock and material which was used in and about the business, contracted all debts, and usually settled all claims. The pharmacy did business with the Moffitt-West Drug Company, of St. Louis and bought from them, at sundry and divers times, goods which were put in the store, and afterwards disposed of in the general course of the business. Between the 11th of November, 1893, and the 12th of June, 1894, the pharmacy bought of the drug company various items of drugs, merchandise, and whisky, which were placed in the general stock, and some of it sold prior to the death of Mr. Lyneman, in the summer of 1893. After his death, Mrs. Lyneman took charge of the store, and found there the barrel of whisky which had been bought of the drug company. She sold it, and appropriated its proceeds. There is some question about the knowledge which Mrs. Lyneman had of the purchase of the other goods, and as to the extent of her personal information respecting the sale of them. We do not regard this question as a very material circumstance, but it is stated because so much stress was put on it at the trial by the learned judge before whom the cause was tried, and who gave some instructions about it which were not justified by the testimony. The goods were sold to the manager by a traveling salesman representing the company, who took the order, and transmitted it to St. Louis, where it was filled by the house. It is on this circumstance that the defense principally turned. Mrs. Lyneman insisted that prior to this time she had notified the salesman not to sell any goods to her husband, and that she would not be responsible for any debts which he might contract; that she desired the goods should be purchased in Denver, where she could better overlook the accounts and control the conduct of her agent, whose honesty and integrity she very bitterly attacked, in a somewhat extraordinary fashion, when we remember that her husband was dead when she testified. Mrs. Lyneman admitted that she had appropriated the whisky, though she refused to pay any part of the bill. While she did not admit that she knew the other goods were purchased and put into the general stock, she did not specifically deny having this information. The complaint stated a cause of action for goods sold and delivered. The answer denied none of its allegations, except those which averred the incorporation of the plaintiff company. The defendant did deny that she was indebted in the sum named, or in any other. This was not a denial of the sale and delivery of the goods. Gale v. James, 11 Colo. 540, 19 P. 446.

After the plaintiff had put in its testimony and rested, the defense put Mrs. Lyneman on as a witness to controvert the sale. The plaintiff promptly objected because the answer tendered no issue on this point. The court so ruled, and the defendant then asked leave to amend the answer. This was granted, and the cause proceeded and was submitted to the jury. The plaintiff then filed a motion to set aside the verdict on various grounds, among which was one which insisted the verdict might not stand because it appeared from the evidence that the defendant had sold the whisky and appropriated the proceeds, and as to this item, at least, the plaintiff was entitled to judgment. This was strenuously insisted on, because the plaintiff had sued out an attachment in aid of the suit, and, of course, would be liable on the bond for damages if it failed to obtain judgment. The court refused to set aside the judgment, but imposed as a condition that the defendant should pay into court, for the use of the plaintiff, the price of the whisky. The company refused to accept it, and the court entered final judgment on the verdict for the defendant, and thereupon this appeal was prosecuted.

The appellant seems somewhat inclined to waive the point that the verdict was totally unsupported by the testimony, and seems to prefer to rest the appeal on the ground that the defendant was liable as a matter of law, because of sundry matters of fact which were practically conceded by the parties. While the appellant might perhaps very safely pursue this course, we are so decidedly of the opinion that the judgment is entirely unsupported by the testimony that we shall put the reversal partly on that consideration. The defendant introduced no testimony to show that any knowledge was brought home to the drug company of any limitation on the authority of the general agent to buy, and the court properly instructed the jury that, unless they found such knowledge was brought home to the company, the sale and delivery of the goods, and their ultimate disposition by the defendant's agent, would bind her, because of his general authority. We quite agree...