National Cash Register Co. v. Kay
| Citation | 119 S.W.2d 437 |
| Decision Date | 09 September 1938 |
| Docket Number | No. 24829.,24829. |
| Court | Court of Appeal of Missouri (US) |
| Parties | NATIONAL CASH REGISTER CO. v. KAY. |
Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.
"Not to be published in State Reports."
Action by the National Cash Register Company against Louis Kay for the purchase price of a cash register alleged to have been sold by a contract in writing, tried with a jury. From a judgment for the plaintiff, defendant appeals.
Judgment reversed and cause remanded.
Richard F. Ralph, of Clayton, and Terry, Terry & Terry, of Festus, for appellant.
Sheridan, Sheridan & Robertson and Hugh D. McCorkle, all of St. Louis, for respondent.
SUTTON, Commissioner.
This action is for the recovery of the purchase price of a cash register.
Plaintiff in its petition alleges that it entered into a contract in writing with defendant, Louis Kay, doing business as Kay's Department Store, by the terms of which contract plaintiff agreed to sell and defendant agreed to buy, and did buy, the cash register described in the contract as "One No. 2205 (11) 1 Dr. register, Morocco black finish, Special denomination of keys, for use in defendant's department store," for which defendant agreed to pay $1,415, as follows: $145 cash, a promissory note for $1200 payable in monthly installments of $50, and an old register for which defendant was allowed $70; that after the execution of said contract plaintiff delivered and defendant accepted said register in accordance with the terms of the contract; that defendant paid plaintiff $145 cash, and gave plaintiff an installment note, calling for monthly payments of $50, which had provisions therein maturing all installments in the event of default in the payment of any installment; but that defendant has failed to turn over the old register and has failed to pay $70 in lieu thereof, and has failed to make payment of the monthly installments; that defendant without the permission of plaintiff left said new register at plaintiff's office in St. Louis; that thereafter plaintiff immediately notified defendant that it would not accept the return of said register, but held the same subject to his order; that under the terms of said contract all the installments are now due and payable, and that defendant is indebted to plaintiff in the sum of $1,270, for which together with interest and costs plaintiff prays judgment.
Defendant, Louis Kay, in his answer, duly signed and sworn to by him, denies specifically that he executed any written instrument in plaintiff's petition described, or authorized any person to execute any such written instrument, and denies generally all the allegations of the petition.
The action was commenced against both Louis Kay and Alfred Kay, but was dismissed as to Alfred Kay, and counterclaims set up by both Louis and Alfred were dismissed.
The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $1,692.25. Defendant Louis Kay appeals.
On a former appeal from a judgment in favor of plaintiff in this cause, this court reversed the judgment and remanded the cause for a new trial. National Cash Register Co. v. Kay, 230 Mo.App. 1046, 93 S.W.2d 260.
The first trial of the cause was had at Hillsboro, in Jefferson County. After the reversal of the judgment on the former appeal the cause was sent on change of venue to the circuit court of St. Louis County, where the second trial was had.
On the present appeal defendant assigns error for the refusal of his instruction in the nature of a demurrer to the evidence. On the former appeal a like assignment on substantially the same evidence was ruled against defendant. That ruling is controlling on the present appeal. McGrew v. Missouri Pacific Ry. Co., 118 Mo.App. 379, 94 S.W. 719; Benton v. City of St. Louis, 248 Mo. 98, 154 S.W. 473; Loud v. St. Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744; Davidson v. St. Louis-San Francisco Ry. Co., 301 Mo. 79, 256 S.W. 169; Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267; Kinsley Bank v. Woods, Mo.App., 78 S.W.2d 148; Crossno v. Terminal Railroad Ass'n, 333 Mo. 733, 62 S.W.2d 1092; Denny v. Guyton, 331 Mo. 1115, 57 S.W.2d 415.
Although plaintiff in its petition pleads both a contract of purchase and a promissory note, it appears to base its right of action on the contract of purchase. The petition was so construed by this court on the former appeal.
Both the contract of purchase and the note were signed, "Kay's Dep't Store, By Alfred Kay."
Defendant contends that though Alfred Kay was in his employ as a clerk at the time the contract of purchase and the note were signed, he was not authorized to purchase the cash register or to execute a contract therefor. Plaintiff contends that he was so authorized. This constituted the crucial issue at the trial.
The evidence shows that defendant Louis Kay, doing business under the name of Kay's Department Store, was the sole owner of the store.
The signing of the contract and note was obtained through the salesmanship of Arthur A. Storck and Harry W. Pease, who were in the employ of plaintiff as salesmen. Their testimony was to the effect that they went to defendant's store in Festus for the purpose of selling him a cash register; that they did not find defendant in the store; that they afterwards found him in a drug store nearby; that defendant said to them, "Alfred is in the store, go take it up with him; whatever he does is okay with me"; that they returned to the store and informed Alfred that they had talked to his father and that his father said whatever he did was perfectly all right with him; that negotiations between them and Alfred Kay was quite a lengthy proceeding; that while they were talking to Alfred Kay, Mr. Louis Kay returned from the drug store, and that during their conversation with Alfred he consulted with his father three or four times.
Alfred Kay testified that when Mr. Storck and Mr. Pease came to the store he told them that he could not go into the matter of buying a register without the consent of Louis Kay, his father; that they said to him, "Louis Kay told us to come in here and contact and contract with you"; that his father was not in the store when he signed the contract and note; that his father was doing some repair work just west of the store and was out of the store practically the whole day.
Louis Kay testified that he did not authorize Alfred Kay to buy a cash register; that he did not sign any order for the cash register, and did not authorize any one else to sign any order for the register; that he did not tell Mr. Storck or Mr. Pease to see Alfred and what he did would be all right, but told them he did not need a cash register and would not buy one.
The instruction in the nature of a demurrer to the evidence was properly refused.
Fountain R. Jennings, sales manager in charge of plaintiff's St. Louis office, whose duties were to operate the company's business in St. Louis and surrounding territory, after having testified on direct examination by plaintiff's counsel respecting the return of the cash register by defendant to plaintiff's office, testified as follows:
Thereupon, defendant's counsel interposed an objection and asked the court to declare a mistrial. The court sustained the objection, directed the jury to disregard the answer, and admonished the witness not to repeat it, but refused to declare a mistrial. The refusal of the court to declare a mistrial is assigned as error here.
There is thus presented a question not hitherto decided in this state so far as we are advised.
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