National Cash Register Co. v. Kay, No. 24829.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSutton
Citation119 S.W.2d 437
PartiesNATIONAL CASH REGISTER CO. v. KAY.
Decision Date09 September 1938
Docket NumberNo. 24829.
119 S.W.2d 437
NATIONAL CASH REGISTER CO.
v.
KAY.
No. 24829.
St. Louis Court of Appeals. Missouri.
September 9, 1938.
Rehearing Denied September 23, 1938.

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"Not to be published in State Reports."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.

119 S.W.2d 438

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...

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7 practice notes
  • State v. Biddle, No. 61784
    • United States
    • United States State Supreme Court of Missouri
    • May 13, 1980
    ...290 U.S. 96, 103, 54 S.Ct. 22, (25,) 78 L.Ed. 196; People v. Deal, 357 Ill. 634, 192 N.E. 649, 652; National Cash Register Co. v. Kay, 119 S.W.2d 437 (Mo.App.).) The use of such results also seem to displace the jury as finder of fact and adjudicator of guilt or innocence. (U. S. v. Alexand......
  • Kirst v. Clarkson Const. Co., No. 8467
    • United States
    • Court of Appeal of Missouri (US)
    • October 12, 1965
    ...14); City of Gallatin ex rel. Dixon v. Murphy, Mo.App., 217 S.W.2d 400, 408-409(14); National Cash Register Co. v. Kay, Mo.App., 119 S.W.2d 437, 440(4, 5); Chenoweth v. Sutherland, 141 Mo.App. 272, 124 S.W. 1055, 1056(5, 21 Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79, 86(15-18); Evans v. ......
  • People v. Monigan, No. 78-6
    • United States
    • Illinois Appellate Court
    • May 21, 1979
    ...U. S., 290 U.S. 96, 103, 54 S.Ct. 22, 78 L.Ed. 196; People v. Deal, 357 Ill. 634, 192 N.E. 649, 652; National Cash Register Co. v. Kay, 119 S.W.2d 437 (Mo.App.).) The use of such results also seems to displace the jury as finder of fact and adjudicator of guilt or innocence. (U. S. v. Alexa......
  • Turner v. Yellow Cab Co. of Springfield, No. 7954
    • United States
    • Court of Appeal of Missouri (US)
    • June 26, 1962
    ...discussion here. 2 E. g., City of Gallatin v. Murphy, Mo.App., 217 S.W.2d 400, 408-409(14); National Cash Register Co. v. Kay, Mo.App., 119 S.W.2d 437; Chenoweth v. Sutherland, 141 Mo.App. 272, 124 S.W. 3 Evans v. Missouri Pac. R. Co., 342 Mo. 420, 426(4), 116 S.W.2d 8, 10(4, 5); Stith v. J......
  • Request a trial to view additional results
7 cases
  • State v. Biddle, No. 61784
    • United States
    • United States State Supreme Court of Missouri
    • May 13, 1980
    ...290 U.S. 96, 103, 54 S.Ct. 22, (25,) 78 L.Ed. 196; People v. Deal, 357 Ill. 634, 192 N.E. 649, 652; National Cash Register Co. v. Kay, 119 S.W.2d 437 (Mo.App.).) The use of such results also seem to displace the jury as finder of fact and adjudicator of guilt or innocence. (U. S. v. Alexand......
  • Kirst v. Clarkson Const. Co., No. 8467
    • United States
    • Court of Appeal of Missouri (US)
    • October 12, 1965
    ...14); City of Gallatin ex rel. Dixon v. Murphy, Mo.App., 217 S.W.2d 400, 408-409(14); National Cash Register Co. v. Kay, Mo.App., 119 S.W.2d 437, 440(4, 5); Chenoweth v. Sutherland, 141 Mo.App. 272, 124 S.W. 1055, 1056(5, 21 Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79, 86(15-18); Evans v. ......
  • People v. Monigan, No. 78-6
    • United States
    • Illinois Appellate Court
    • May 21, 1979
    ...U. S., 290 U.S. 96, 103, 54 S.Ct. 22, 78 L.Ed. 196; People v. Deal, 357 Ill. 634, 192 N.E. 649, 652; National Cash Register Co. v. Kay, 119 S.W.2d 437 (Mo.App.).) The use of such results also seems to displace the jury as finder of fact and adjudicator of guilt or innocence. (U. S. v. Alexa......
  • Turner v. Yellow Cab Co. of Springfield, No. 7954
    • United States
    • Court of Appeal of Missouri (US)
    • June 26, 1962
    ...discussion here. 2 E. g., City of Gallatin v. Murphy, Mo.App., 217 S.W.2d 400, 408-409(14); National Cash Register Co. v. Kay, Mo.App., 119 S.W.2d 437; Chenoweth v. Sutherland, 141 Mo.App. 272, 124 S.W. 3 Evans v. Missouri Pac. R. Co., 342 Mo. 420, 426(4), 116 S.W.2d 8, 10(4, 5); Stith v. J......
  • Request a trial to view additional results

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