Murphy v. Holliway et al.

• Decision Date: 01 April 1929
• Docket Number: No. 16399.,16399.
• Citation: 16 S.W.2d 107
• Parties: P.I. MURPHY, APPELLANT, v. W.W. HOLLIWAY AND OTHERS, RESPONDENTS.
• Court: Missouri Court of Appeals

16 S.W.2d 107

P.I. MURPHY, APPELLANT, v. W.W. HOLLIWAY AND OTHERS, RESPONDENTS.

No. 16399.

Kansas City Court of Appeals. Missouri.

April 1, 1929.

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.

BARNETT, C.

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.

                                             "Nov. 1st, 1921
                

"Ship by Freight on or about at once 192_. To John Stapel "Shipping Point Rockport County, Atchison State Mo. Routing ____ "P.O. Address Rockport County, Atchison State Mo. St. No. ______

                --------------------------------------------------------
                "Quantity  Catalog  NAME AND DESCRIPTION   Price  Amount
                           Number    OF ARTICLES ORDERED.  Each
                --------------------------------------------------------
                                    Kind of Desks —
                                    Single, Double
                                    Pedestal, Commercial
                                    Chair or Movable
                                    Finish, etc
                                    Opera Chairs, Finish,
                                    Hat Wires, etc.
                --------------------------------------------------------
                

"Approximately 427 # 242 Mahogany Finish freight paid and chairs installed according to plan with number plates furnished @ $3.32 each.

"It is further agreed that should there be a decrease in prevailing price before next June below the price paid in this case that said decrease is to be rebated by company.

"No interest until Jan. 1, 1922. Payable before Jan. 1, 1923, with interest at six per cent. 1.3 of amount may be carried with interest at six per cent until June, 1923, if necessary to consignee. Installation immediately if possible.

"Total Amount of Order Approximately 1476.64

"The PEABODY SCHOOL FURNITURE COMPANY of Topeka, Kansas, agrees to deliver the goods specified in this contract in good condition on board cars, at Factory, or as noted above, and furthermore guarantees all goods to be free from all imperfections of material and workmanship and equal to specifications, description and sample, and to render the service reasonably to be expected of such articles.

"In consideration of the above Atch. County Memorial Bldg. Committee, County of Atchison, State of Mo., agree to receive the goods specified in this order, pay all transportation charges, and remit for same to PEABODY SCHOOL FURNITURE Co., of Topeka, Kans., the sum of noted above $3.32 each Dollars ($____) in Cash or in legally executed School Warrant or Warrants bearing or including — per cent interest from date of issue and payable $____, ____ 192_, $____ 192_.

"If transportation charges are included in the amount of this order, the School Officers agree to pay same and deduct from above amount, sending freight receipt as cash when making remittance. All remittances will be made direct to PEABODY SCHOOL FURNITURE Co., of Topeka, Kans. All agreements and specifications affecting this order are enumerated on this sheet or attached hereto in writing and any verbal agreement shall not alter same.

                =======================================================================
                         Signature         Official Title  Post Office
                                                             Address
                -----------------------------------------------------------------------
                                           President or
                                             Director
                -----------------------------------------------------------------------
                [Signed]
                 Geo. W. Boettner, Sec'y.  Secretary or
                                             Clerk
                -----------------------------------------------------------------------
                                           Treasurer
                -----------------------------------------------------------------------
                

"By unanimous order of Committee in executive session.

"Deposit in Citizens Bank of Rockport City, _____ State. Mo.

                       "[Signed] By R.C. EVERETT, Salesman."
                

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.

"THE PEABODY SCHOOL FURNITURE COMPANY OF TOPAKA, KANSAS.

                                                       _______ 192_
                  "Ship by Freight on or about __________ 192_ To _____________
                  "Shipping Point ______ County _____ State ______ Routing ____
                  "P.O. Address _______ County ______ State ______ St. No. ____
                

                ========================================================
                "Quantity  Catalog  NAME AND DESCRIPTION   Price  Amount
                           Number   OF ARTICLES ORDERED.   Each
                --------------------------------------------------------
                                    Kind of Desks —
                                    Single, Double,
                                    Pedestal, Commercial,
                                    Chair or Movable.
                                    Finish, etc.
                                    Opera Chairs, Finish,
                                    Hat Wires, etc.
                --------------------------------------------------------
                "Total Amount of Order ____________
                

"The PEABODY SCHOOL FURNITURE COMPANY of Topeka, Kansas, agrees to deliver the goods specified in this contract in good condition, on board cars, at factory, or ____, and furthermore guarantees all goods to be free from all imperfections of material and workmanship and equal to specifications, description and sample, and to render the service reasonably to be expected of such articles.

"In consideration of the above, the School Officers of District No. ____, County of ____, State of ____, agree to receive the goods specified in this order, pay all transportation charges, and remit for same to PEABODY SCHOOL FURNITURE Co., of Topeka, Kans., the sum of ____ Dollars ($____) in Cash or in legally executed School Warrant or Warrants bearing or including — per cent interest from date of issue and payable $____ 192_, $____ 192_.

"If transportation charges are included in the amount of this order the School Officers agree to pay same and deduct from above amount, sending freight receipt as cash when making remittance. All remittances will be made direct to PEABODY SCHOOL FURNITURE Co., of Topeka, Kans. All agreements and specifications affecting this order are enumerated on this sheet or attached hereto in writing and any verbal agreement shall not alter same.

                =================================================================
                "Signature       Official Title    Post Office Address
                -----------------------------------------------------------------
                            President or Director
                -----------------------------------------------------------------
                            Secretary or Clerk
                -----------------------------------------------------------------
                            Treasurer
                -----------------------------------------------------------------
                

                  "Warrants are payable at ____ Bank _____ City ____ State _____.
                                        "By ________________, Salesman."
                

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...