Murphy v. Holliway
| Decision Date | 01 April 1929 |
| Citation | 16 S.W.2d 107,223 Mo.App. 714 |
| Parties | P. I. MURPHY, APPELLANT, v. W. W. HOLLIWAY AND OTHERS, RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Atchison County.--Hon. John M Dawson, Judge.
REVERSED AND REMANDED IN PART AND IN PART AFFIRMED.
Edwin A. Austin and Lee Mullins for appellant.
W. C Ellison, L. D. Ramsay, Henry B. Hunt and James F. Gore for respondent.
Trimble, P. J., absent.
This is an action for the purchase price of 510 opera chairs sold and delivered to defendant by the Peabody School Furniture Company, of Topeka, Kansas. The plaintiff is the president and the assignee of that company. The evidence shows that the defendants, with the exception of William R. Erwin, are members of a committee known as the Atchison County Memorial Building Committee, an unincorporated voluntary association. The county court of Atchison county had made an appropriation under the provisions of an act of the Missouri Legislature, Laws of Mo., 1919, p. 78, for the purpose of erecting a memorial building in memory of the World War soldiers and sailors. This appropriation was not sufficient to pay for the proposed building; so the county court appointed a committee to build and equip the building and to raise money for that purpose, but gave the committee no authority to incur any indebtedness on behalf of the county. The building was constructed and equipped, largely by use of means raised by popular subscription. When the equipment of the building was under consideration, one R. C. Everett called at the town of Rockport and succeeded in getting the greater number of the committee together, at which time he took a tentative order for 427 opera chairs at the price of $ 3.32 each. The members of the committee present authorized defendant George Boettner to sign the order as secretary of the committee. The order was written upon an order blank placed over two duplicate blanks with carbon paper between; so that in writing the one order three copies were made. The blank form was evidently prepared primarily for taking orders from school boards. The original order was forwarded to the Peabody School Furniture Company and one of the carbon copies was left with the secretary of the committee. Several members of the committee read the order before the secretary signed it, and according to the defendants' evidence the salesman read the order in the presence of all the members of the committee who attended the meeting. However, one of defendants' witnesses said that he did not know whether all of the order was read or not. When the original order was received by the furniture company it was in words and figures as follows:
"THE PEABODY SCHOOL FURNITURE COMPANY
OF TOPEKA, KANSAS.
Catalog
NAME AND DESCRIPTION OF
Price
Amount
Number
ARTICLES ORDERED.
Finish, Hat Wires, etc.
At the trial the defendants introduced in evidence the carbon copy which was left with the secretary, and the words which we have italicized, namely: the words "before next June" and the words "approximately 1476.64" were not on the copy. As part of the order was printed and part was written in pencil, we reproduce the printed blank which was used in taking the order.
Catalog
NAME AND DESCRIPTION OF
Price
Amount
Number
ARTICLES ORDERED.
Finish, Hat Wires, etc.
The plaintiff's petition was in three counts. The first count alleged that plaintiff is the assignee of the Peabody School Furniture Company, a corporation; that defendants constituted a voluntary, unincorporated association, of which George Boettner was secretary; that the furniture company sent its traveling salesman to attend a meeting of the committee and furnished him with printed blank forms of orders; that the committee by unanimous order of all the defendants as such committee purchased from the furniture company 510 opera chairs at the agreed price of $ 3.32 each, and that defendant Boettner as secretary of said committee, for himself and as the duly authorized agent of the other defendants, executed and delivered to the salesman to be returned to the furniture company, the written order and contract of said committee upon said printed blank forms for approximately 427 of said chairs. It was alleged that a copy of the order was attached and marked "Exhibit A," and the original order as received by the furniture company was so attached, but it was alleged that if any alterations were made after the execution and delivery of the same without the consent of the defendants, the said alterations were made without the authority and consent and without the knowledge of the Peabody School Furniture Company. It was alleged that subsequent to the signing of the order the committee increased the number of chairs to 510, and pursuant to the terms of such contract, the furniture company caused the chairs to be shipped to the defendants and the defendants received and accepted the same in full performance of the contract, and they have ever since retained the same; that defendants paid the sum of $ 300 on account; that they were still indebted to plaintiff in the sum of $ 1693.20 with interest from January 1, 1922, less $ 300, for which sum, together with costs, the plaintiff prayed judgment.
The second count of the petition was much the same, but it alleged that R. C. Everett had no authority to alter the order after it was signed, that if he did alter it he did so without any authority from the furniture company, and without...
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