Noyes-Norman Shoe Co. v. Cooper

• Decision Date: 03 March 1928
• Docket Number: No. 4389.,4389.
• Citation: 4 S.W.2d 486
• Parties: NOYES-NORMAN SHOE CO. v. COOPER.
• Court: Missouri Court of Appeals

4 S.W.2d 486

NOYES-NORMAN SHOE CO. v. COOPER.

No. 4389.

Springfield Court of Appeals. Missouri.

March 3, 1928.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the Noyes-Norman Shoe Company against W. M. Cooper. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Shelley I. Stiles and Sam J. Corbett, both of Caruthersville, for appellant.

McKay & Peal, of Caruthersville, for respondent.

BAILEY, J.

This suit is on an account for shoes sold and delivered by plaintiff, a shoe manufacturing company of St. Joseph, to defendant, engaged in the mercantile business at Steele, Mo. The case originated in justice court, where plaintiff obtained judgment for the amount claimed, to wit, $250. Thereafter an appeal was taken to the circuit court, where the cause was tried at the November term, 1926, resulting in a verdict and judgment for defendant. This judgment was set aside on motion for new trial, and the case was retried to a jury in April, 1927. The verdict was again for defendant, and plaintiff has appealed.

The evidence on the part of plaintiff shows that under dates of July 16, September 8, and November 12, 1925, respectively, bills of goods were shipped by plaintiff to defendant as a result of orders obtained by one Hubbs, their salesman and agent. These orders were not in evidence, but what purported to be invoices for the goods shipped were introduced and tended to establish plaintiff's claim. These invoices each had marked thereon the following: "Terms 5/10 2/30 net 60" and in each instance identified the shoes by lot number, number of pairs, and an abbreviated description of the kind of shoes.

The defense relied on (not pleaded because no answer was filed in justice court) was a special agreement, by the terms of which defendant claimed the right to return any and all unsold shoes within a reasonable time. The chief point in this case is in regard to the admission of evidence on the part of defendant supporting that defense. Over the strenuous objections of plaintiff's counsel, defendant was permitted to testify in regard to his agreement with plaintiff's salesman, as follows:

"Well, the contract I made with this man was this: He placed the proposition before me that if the shoes didn't move—they were high priced shoes — he said that if they didn't move he would come and take them up, and I would pay for what I had sold. He didn't come back, and they wrote me a statement about the shoes, and so they were not moving, and I shipped the shoes back that I had on hand and sent them the money for what I had sold. In a day or two I got another order of shoes to finish up the contract I bought of this man and a day or two later [interrupted] * * * I shipped the shoes back according to the contract—I was to ship them back or he was to take them up, and I shipped them back. Well, some was to be shipped at once and some at a later date, that is, the shoes that I was to ship back—in October—which didn't reach there until possibly December."

On November 11, 1925, defendant returned certain shoes and accompanied the return shipment with the following letter:

"Exhibit E.

                "$78.00
                  "ck.             Steele, Mo., 11-11-25
                

"Noyes-Norman Shoe Company, St. Joseph, Mo.—Gents: I am returning

                5 Pr. No. 2215  (9/8 ) ........... $4 50 ........... $ 22 50
                2 Pr. No. 2291  (6/12) ...........  4 50 ...........    9 00
                8 Pr. No. 2261s (7/15) ...........  5 00 ...........   40 00
                3 Pr. No. 2474  (6/12) ...........  4 00 ...........   12 00
                1 Pr. No. 2268  (6/12) ...........  4 50 ...........    4 50
                                                                     _______
                                                                     $ 88 00
                    Check for ......................................   78 00
                                                                     _______
                                                                     $166 00
                

"Sorry weather is bad cotton has lost it vallew and there is no demand for these shoes.

                    "Yours,                W. M. Cooper."
                

It appears that the shoes referred to in defendant's letter as bearing the lot Nos. 2291, 2274, and 2268, respectively, were from a previous shipment made to him by plaintiff on June 11, 1925, amounting to $69, the full amount of which was paid by defendant by his check dated September 12, 1925. Defendant testified this shipment (which, as stated, was paid for in full) was included in his special agreement with plaintiff's salesman. The bill for that shipment is not included in the account sued on, but that particular shipment squarely presents the principal issue in the case, i. e., whether or not defendant could prove and rely on a special contract made with plaintiff's salesman to the effect that he could order a shipment of shoes, pay for same, and afterwards return any unsold shoes within a reasonable time and receive due credit therefor.

In considering this question certain features may be eliminated. No doubt, plaintiff would have been bound by the acts of its agent in making such a contract if its officers in charge of the company's business had knowledge of the arrangement and, by some act, thereafter ratified same. Defendant makes no such claim. In fact, there was nothing on the orders or invoices to indicate the existence of such an understanding. Defendant had paid for the first bill of shoes in full and without question on the 12th of September, 1925. The first notice plaintiff received of defendant's asserted right to return unsold shoes was on December 3, 1925, and the alleged agreement was immediately repudiated by plaintiff's refusal to accept the shoes defendant attempted to return. There was, therefore, no ratification.

It is asserted that plaintiff would be bound by the contract made by its agent if within the scope of the agent's apparent authority This apparent or implied authority is determined by the nature of the agent's business, and, unless the contrary manifestly appears, it is construed to include all incidental acts necessary and essential to the proper execution of his duties as agent. Samuel v. Bartee, 53 Mo. App. 587; 31 Cyc. 1337; 21 R. C. L. 853, 854. A principal is bound by the acts of his agent when he has placed him in a position so that a person of ordinary prudence, conversant with the custom and usages of the business, is thereby led to believe the agent is possessed of certain authority and without negligence deals with him, relying on such assumption. Universal Paper Products Co. v. Funsten Co. (Mo. App.) 285 S. W. 516. The usages and custom of a particular trade or business may be shown, not for the purpose of enlarging on the agent's authority, but to interpret or explain powers actually given. Dellecella v. Harmonie Club, 34 Mo. App. 179; Mabray v. Kelly-Goodfellow Shoe Co., 73 Mo. App. 1; Austin-Western Road Machinery Co. v. Com. State Bank (Mo. App.) 255 S. W. 585; Brooks v. Jameson, 55 Mo. 505; Watkins v. Edgar, 77 Mo....